Coming to America and the Nollywood Igwe

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Igwe Jaffe Joffe, Crown Prince Akeem and the Queen

It may be surprising, but I think that Coming to America may be having its greatest period of influence ever on African entertainment, 26 years after its release in 1988. On Nollywood, in particular. The movie, one of my personal favourite comedies,  follows the story of Akeem, crown prince of the fictional African Kingdom of  Zamunda, who comes to America to find a bride. It was Eddie Murphy at the height of his powers.

Anyway, a couple of weeks ago, I had to take an ABC Coach to go to Cotonou to see a man about a thing. A fairly short distance but thumbs up to the Federal Road Safety Commission and the Customs and Immigration Services with their 10 checkpoints each between LASU and the border, and then at the border itself, for tacking on an extra few hours. ABC filled the intervening journey time with their “in-flight” Nollywood entertainment.

Apart from seeing previews with Funke Akindele basically reprising her Jenifa character in a variety of non-Jenifa-franchise movies clearly aimed at boosting her crossover appeal (our very own Steven Seagal, if you like), there were  loads of “Igwe” films.  Kings and crown princes from various miniature kingdoms, purportedly in southeastern Nigeria, living in varying degrees of mostly anachronistic opulence. It wasn’t out of place, for instance, to see a prince or princess, who lived in a palace with marble floors and modern furniture, go for walks in the forest barefooted. Or for neighbouring kingdoms, whose Igwes both drive 2003+ Mercedes Benzes to gather up their “soldiers”, dress them in animal-skin loin-cloth, arm them with spears and shields and then “go to war”.

More than anachronisms however, were the unmistakable influences from King Jaffe Joffa of Zamunda, with servants in uniform, kings and princes with lionskin/lionhead sashes, right down to even the caps that Akeem and Semi wore. Then, there was the movie where three princesses tried to outdo each other to be chosen by the crown prince of some other kingdom, at the banquet put on by their father (more Disney Princess than Akeem, I’ll admit) and another where the monarch had people throwing flower petals on the ground for him to walk on.

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The Royal Petal Throwers

I’m probably not in Nollywood’s target demographic but I couldn’t help thinking about the differences between  Zamunda and the “kingdoms” in the Igwe movies. Zamunda was a country, so Jaffe’s wealth was more understandable and more likely than the usually unexplained wealth of the movie Igwe. Also, from my understanding of traditional monarchies in Nigeria, succession to the throne is not hereditary, at least not in the sense of passing from Father to Son to Grandson. It more often than not is determined by a council of kingmakers and, as such, crown princes are an unlikely notion. I may be wrong about this however.

I think, more than the inconsistencies, which will surely be eliminated over time, it is truly remarkable, in 2014, to still see shades of Akeem and his father in the carriage and costume of the Nollywood kings and princes. Tribute to an enduring piece of movie magic.

Brand Endorsements & Restraint of Trade

Two Thumbs Up

Endorsed!

In a recent piece for Premium Times, Michael Abimboye highlighted a new trend in the entertainment industry which, if true, presents an interesting legal situation. According to the piece, in the wake of the mass recruitment of musicians as brand ambassadors by telcos, many have been effectively precluded from working with ambassadors of rival brands on projects that have no connection with the brands. This, to my mind, brings up the issue of the restraint of trade.

Restraint of trade is a common law doctrine that raises the question of the enforceability of clauses in some contracts. Generally, there is a freedom to contract i.e. parties are free to agree to whatever they deem fit. However, apart from outright crimes, the law as a matter of public policy frowns at some things that are not necessarily illegal. One of these things is the restraint of trade.

A contract in restraint of trade is one that partly or wholly restricts a person from carrying out a business or a trade. At common law, such agreements are, as a general rule, not enforceable. This means that an aggrieved party cannot ask the court to uphold the agreement and prevent the other party from carrying on his trade in the manner written down in their agreement. To relate this to the current issue of brand endorsements, it would mean that “Yellow Telco” would ordinarily not be able to ask the court to prevent “Artiste W”, its ambassador, from appearing in the music video of “Artiste O”, who happens to be an ambassador for “Green Telco”.

In law however, exceptions usually outnumber the general rule and it is no different with contracts in restraint of trade. Furthermore, there are now at least three separate categories in which the issue may arise, with different applicable principles – (1) employment contracts, (2) general commercial agreements and (3) under competition law.  In categories (1) and (2), especially where the relationship between the Parties involves the exchange of trade secrets or such other confidential information, the courts have been known to enforce the restraint.

Under English law, restraints have to be reasonable to be enforceable. According to this paper, US courts have set the following 3-pronged test to determine the reasonability of clauses restraining trade:

  1. is the restraint necessary to protect the employer’s legitimate interest?
  2. would enforcement be unreasonably burdensome to the employee or harmful to the public interest?
  3. are time and geographical restraints reasonable?

If this test were to be applied to the current allegations of “rival” ambassadors being unable to shoot videos together, the questions would be – is this restraint necessary to protect the telcos’ interests? Does the telco brand suffer dilution because musicians who ordinarily collaborate in the course of their trade and have, in fact, recorded music together, now wish to shoot a video to promote the music? Is it unreasonably burdensome for this restriction to be in place? Does these restrictions harm the public interest? Your opinions are welcome.

However, it is not clear that the restrictions put in place by the brand endorsement contracts are as extensive as are being reported. The Premium Times articles quotes MTN’s General Manager, Corporate Affairs, on this issue as follows:

“Companies sign what is known as exclusivity clauses with their brand ambassadors. Typically this would impose a restriction on the brand ambassador not to work for a competing brand within a stipulated period. This period of exclusivity is typically the duration of the agreement or as may be agreed. The exclusivity provisions does not typically extend to stopping ambassadors from interacting with each other provided what they propose to do does not amount to a breach of their obligation under the brand contract…” (emphasis supplied).

It is reasonable and it should in fact be expected, that an artist cannot endorse a rival brand during the term of their endorsement contracts. So, for example, Artist B, ambassador of “Light Green Telco” cannot appear in an advert or at an event promoting “Red Telco”.  What would seem a little overboard is extending the scope of “working for a competing brand” to collaborating with a fellow artist on a project.

It is unlikely that any artist will test the judicial waters on this issue, if those endorsement contracts are as juicy as the papers report. However, I do not think a Telco that withheld payments because of a video collaboration between rival ambassadors would have a leg to stand on.

The Problem With Our Live Performances

When you buy or are given tickets to attend a concert, is your expectation merely to see musicians in the flesh or to hear them sing and watch them put on a show? Chances are that most people are hopeful for a real performance when they head out to shows and this is why our musicians must not simply dismiss it as “hating” when their customers (ie we the listeners) complain about artists coming on stage to simply shout over their street-copy singles.

There are a few of reasons why I think the industry needs to re-evaluate its predominant mode of live performances. The first is that it adds no value to the artist’s brand or public image. You jump over the entire stage yelling your lyrics over music I already have on my iPod or in my car. It takes no craftsmanship to do that – the concert promoters might as well doll up some average Joe on the streets, slap sunshades on him, teach him the lyrics to your song and ask him to run all over the place, asking people to throw their hands up.

Secondly, in an industry where music is sounding increasingly homogenous, both lyrically and rhythmically, an artist does not differentiate himself from the others if he gives the exact same performance that everyone who gets on stage before of after him will give – yet this is what happens at most shows. The result is very few memorable performances, if any.

Thirdly, because of the hopelessly poor audio (shouting hoarsely and mostly out of sync over street-copy music) artists kill potential additional revenue streams from post-event marketing, such as DVDs and CDs.

Now, obviously, accompanying musicians and backing vocalists cost money and most labels and stars are struggling with very slim revenue margins. So, kudos artists who customarily perform with a band. My argument, however, is not that artists who cannot afford it break the bank hiring a band. In fact, many foreign artists, when they come here, perform over a CD. The difference is, the backing CDs of these foreign artists are stripped of lead vocals. So, for example, you didn’t hear either Joe or Maxi Priest singing over their own leads (at the MTN Corporate Elite Concert), even though neither came with a band. Secondly, these guys come with their own DJs, to segue the music properly and maybe even loop a few bars for the artist to ad lib over.

Most music is mixed and mastered with software these days, so I can’t imagine it being very hard to simply take out the lead vocal tracks and create a separate backing CD for live performances.

The industry deserves commendation for how far it has come. Music is mixed and videos are shot to the highest international standards, and our performers deserve credit for this. There is still some way to go with live performances however, and I urge the industry to take a closer look at this in 2014. I can’t believe I’m going to quote Donald Trump, but I heard him say this once in an interview a while back, talking about his success: Nobody wants a free lunch. Give them an unforgettable lunch and you can’t miss.

The COSON Summit on Digital Licensing

COSON (the Copyright Society of Nigeria) hosted a summit on digital licensing at the Ikeja Protea, on Monday the 12th of August 2013. The purpose of the summit was to discuss the challenges posed to the industry by digital formats for musical works and sound recordings. In attendance were lawyers, record label owners, recording artists, VAS companies (ringtones, caller tunes, etc.), as well as other stakeholders such as representatives of the Record Label Owners Association and the Audio Video CD Sellers Association of Nigeria (AVSAN).

 

The Chairman of COSON, Chief Tony Okoroji, led a panel of moderators that included Efe Omorogbe (Now Muzik), Audu Maikori (Chocolate City), Mark Redguard (Spinlet), Erelu Keji Okunowo (Industry Veteran), as well as a representative of the Nigerian Copyright Commission.

 

After Chief Okoroji took the gathering through the evolution of recording formats from vinyl to 8-track to cassette to compact disc to MP3 and other digital formats, the discussions very quickly split into 3 strains – skilled lawyers/judges are either small in number or not well-known, contracts are not respected, the industry is too fragmented and “disorganised” and offline downloads. Brief summaries and then my 50 kobo on these key issues.

 

LAWYERS AND THE JUDICIARY

One of the problems facing the industry is that many lawyers drafting and reviewing licensing agreements do not have the requisite specialist knowledge. As Managing Partner of G. O. Shodipo & Co, Mr Femi Fajolu, said, “…if you use the same lawyers for maritime as you use for general corporate work, you will sink in the water.” Or, as Audu Maikori said, “Dentists don’t perform eye surgeries.”

 

The danger in non-specialist lawyers preparing specialist agreements is that you are more likely to have bad agreements – the sort that precipitate litigation. Litigation is also an unattractive proposition because apart from its duration (and lack of assets to satisfy judgment debts, in the case of most artists), there is also the problem of not having a sufficient number of judges versed enough to properly settle IP disputes.

 

The summit proposed training sessions for artists and the judiciary. Industry practitioners were advised to contact the Intellectual Property Lawyers Association of Nigeria (IPLAN) for lawyers with specialist knowledge. It was also advised that IPLAN begin to lobby the National Judicial Commission and the judicial institute on appointing judges with IP expertise.

 

Nothing to add, for me.

 

OFFLINE DOWNLOADS

I was unfamiliar with this term before yesterday, though well aware of the activity it describes. Offline downloads occur when, for example, you hand your phone or tablet memory card to a laptop entrepreneur with a library of several thousand songs, some of which he copies onto your memory card for the paltriest of fees; something like 5 or 10 naira per track. Apparently, these guys have become such an issue that even Alaba marketers are complaining. I repeat, Alaba is complaining!!! AVSAN was especially passionate about this, though someone needs to tell them that their model is in terminal decline anyway.

 

This is an extremely tough nut to crack. Proposals considered for tackling it included licensing and persistent raids. However, as they’re literally everywhere, raiding them, no matter how frequently, would be akin to fighting vermin on a 5-acre farm with only a can of home insecticide – very minimal distortion. Licensing would also be tricky. How would pricing be enforced? What would compel people currently evading “capture” to voluntarily come forward for licensing? Should we even really be considering licensing – will the government also license operators of illegal crude refineries, for example?

 

Perhaps market-place executives need to start being held jointly liable for allowing copyright infringement go on within the markets? That way, the local market unions would be compelled to drive such people away from many public spaces. This would probably require a revision to existing laws, however, as people can only be liable for crimes as defined in existing laws.

 

OVER-FRAGMENTATION

“How do you know the real owner of the copyright in a musical work?” “How do you know you have not obtained your license to distribute digitally from the wrong person?”

 

These questions become more relevant as more and more disgruntled artists leave the labels where they became established, to set up their own companies. Inherent in that is the issue of attitudes within the industry to contracts and whether contracts have been properly terminated. However, there is the practical question, where the artist leaves properly, of ownership of new material.

 

Proposals put forward to solve this included mandatory copyright registration (which is not currently required under the law), the establishment of an authentic industry copyright registry and, most worryingly for me, mandatory registration/identification as an entertainment industry practitioner.

 

I think, in considering “sanitising” the industry, a few issues need to be borne in mind. First of all, registration of intellectual property, even where it is mandatory, is only prima facie evidence of ownership. What this means is that anyone who can demonstrate superior title can rebut the title granted by the government in respect of the intellectual property.

 

Secondly, the trend in Nigeria, once older folk start talking sanitisation or regulation is that financial and regulatory barriers to entry begin to crop up. In some cases, the promoters of regulation push for their body to become “chartered”, after which it usually becomes illegal for unchartered people to work within the trade. Caution must be taken that industry veterans do not stifle the creativity of younger participants with whatever remedial actions are agreed upon.

 

Overall, the summit was a useful meeting, the highlight of which, for me, was meeting Laolu Akins. A committee has now been formed to map out an industry strategy to tackle the digital challenge, and we look forward to its report in the coming weeks.