This article considers the question of copyright infringement in the use of lyrics in a musical work (in which copyright existed) in another musical work as demonstrated in a lawsuit filed by one Tony Tetuila and Tic Tac (two popular musical artists from Nigeria and Ghana respectively) against Wizkid and DJ Tunes (both musical artist and producer in Nigeria) in regards to their recent song titled “Gbese”. The article examines the possible outcome of the lawsuit by relying on intellectual property tenets as “originality”, “fair dealing”, and as peculiar to the Nigerian setting, “folklore and expression”. From the examination, it became apparent that there was no copyright infringement by Wizkid and DJ Tunes, and Tony Tetuila and Tic Tac lawsuit is destined to fail.
In 2019, days before Christmas1, while Nigerians were submerged in the festivities that come along with the festive period, a piece of news came to light. The news was that a renowned and veteran Nigerian artist known as Tony Tetuila2 and a Ghanaian artist—Tic Tac3—had sued a (more of a new generation) artist, Wizkid4 and a producer (DJ Tunes5) since August 2019 in a Federal High Court sitting in Lagos for copyright infringement of their song. The duo (Tony Tetuila and Tic Tac) are asking for N30 Million in damages6. The two songs in question are “Fefe Na Efe”, an original song by Tic Tac, but which featured Tony Tetuila, and the DJ Tunes produced song performed by Wizkid titled “Gbese”. Basically, in the “Fefe Na Efe” song, Tony Tetuila had said a lyric “fefe na efe na the beauty of a woman”, which Wizkid had also repeated in the recent song, “Gbese”. The main question is, considering the “unauthorized” use of this lyric, whether Tony Tetuila and Tic Tac can win their copyright infringement lawsuit against Wizkid and DJ Tunes?
This article for obvious reasons answers the question in the negative by examining the main issue from some prominent intellectual property tenets—originality, fair use/dealing, and peculiarly, folklore and expression protection in Nigeria.
Fortunately, the issues involved in this case are not as complicated as in most copyright infringement cases that have to do with music. Usually, most of them have to do with the beats of the song, arrangement of rhythms, compositions, how the record was produced, the lyrics, etc. In this case, it is just the lyrics, the fact that Tony Tetuila on the Tic Tac song—Fefe Na Efe”—had spitted “fefe na efe na the beauty of a woman”, and Wizkid had said the same thing in his song with DJ Tunes.
First, it must be noted that in several instances, copyright infringement has been found in several cases that have to do with an artist’s musical work. The reason is thatone, in Nigeria (and most jurisdictions), “musical works” (and the inclusive “literary work”) as in this case are protected expressly by the Nigeria Copyright Act7 in its section 1(1)(b) and (a) respectively as one of the “eligible works” copyright could subsist. Also, section 15(1)(g) highlights one of the ways copyright (in such protected work) could be infringed. It states:
“(g) performs or causes to be performed for the purposes of trade or business… any work in which copyright subsists.”
Wizkid and DJ Tunes’ aim of making their record is for commercial purposes, they have publicly performed the song several times and made money off it by sale, performance, etc, and this explicates why one of the request (from court) on the Complaint filed by plaintiff in theirlawsuit asks for 35% of both the digital sales and royalties received from the song8. The reason why the plaintiffs are asking for 35% and not 100%, and for N30 million in damages and not more is obvious, it is because they only felt only one line of the lyrics of “Gbese” constituted an infringement of their copyright in “Fefe Na Efe”. It would have been absurd if they ask for more than this (and even though it is possible, this paper will not explore that issue).
While the question of whether copyright subsists in the “musical works” as a whole is not in doubt, the main question is in the use of the phrase “fefe na efe na the beauty of a woman”—a (lyrical)literary part of the latter musical work—“Gbese”—since lyrics form a part of a “musical work” as protected by law. Distinguishing the “musical works” as a whole from the “literary” part of it (the lyrics “fefe na efe na the beauty of a woman”)is instructive for knowledge-sake because even though the literary part forms part of the musical work, copyright separately exists for both “musical work” and “literary work”. So, there is a distinction (between the types of work) without a difference (in the possibility of protection for “eligible works”). For the purpose of this paper, the lyric in question would be tagged “musical-literary work” (even though categorizing the lyric under either of the type of work would be valid9) without necessarily going into the debate of how to categorize lyrics from a musical work, especially where the infringing part of the musical work is a lyric, as in this case.
Regardingthe “literary” part specifically, we turn to two main reasons why the court would most likely not find copyright infringement and thus leading to this lawsuit being thrown out of court. The first rationale borders on the requirements of copyright (for “literary” and “musical” works), and secondly on the nature of folklore, and expression. The exception of fair use/dealing was considered and as thought, it cannot be a reason why there will not be copyright infringement. In fact, “fair dealing” as it is in Nigeria is an antithesis of the idea that there is no copyright infringement in this case.
On the first rationale of copyright requirements. It is notorious that for the law to give copyright protection on a “work”, the “work” must be “eligible”. The “eligibility test” is a filter to determine what “work” gets protection, and which do not. In Nigeria, as in most jurisdiction, the “eligibility test”is statutory, and it states in regards to the type of works in question—“musical” and “literary” work—that:
“(2) A literary, musical or artistic work shall not be eligible for copyright unless‐
(a) sufficient effort has been expended on making the work to give it an original character;
(b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.”
The two requirements described in the above statutory provision are succinctly stated as the “originality test”10, and the “fixation” requirement11. The literary part ofthe music work in question passed the second test of fixation (i.e. expression of the work in a definite form)because the lyric “fefe na efe na the beauty of a woman” was expressed on the song “Gbese”, and “Gbese” is at least fixated digitally12 (even if not physically as in CDs, Cassettes). On the “originality” test, there are two arguments on what amounts or counts as “originality”. The first argument is advanced by the UK courts as seen in the classic case of University of London Press v. University Tutorial Press13 . The test of “originality” was explained by the English court to mean “sweat of the brow”. Basically, a person hoping for copyright on a work must have done some work that will pull some sweat from his brow, it cannot be a work achieved by a trivial effort, but the eventual work need not be “creative” in itself14. The second argument is well demonstrated in the US Feist15 decision, basically, the US court requires some “creativity” in a work before copyright is allowed.
Now, the “creativity” test is obviously a higher standard than the “sweat of the brow” test, and it is apparent that Nigeria adopts the “sweat of the brow” test from its colonizers—the UK—and same is exemplified in section 1(2)(a) of the Nigeria Copyright Act, that “sufficient effort” must be have been expended on a work to get copyright. The effort need not be “creative” as expected in the US.
The next question is whether the lyric “fefe na efe na the beauty of a woman” passes the test of originality in Nigeria (and/or the US). Before answering this question, a little background information is necessary. “Fefe na efe” is an Ashanti aphorism in West Africa, Ghana. The term itself is a short version of a long-expression. The long and full phrase is “Fe fe naa efe inti na, o ba tu le ka o so ne nu fu na yese Ebeti a to nti”. The English translation is “it is because of the beauty that is why a woman holds her breasts when she runs, not because the breasts are going to fall.” The term itself(Fefe Na Efe) is made popular and introduced into the Nigeria lingo by the legendary Nigerian artist—Fela Kuti—via his song with the same title “Fefe Naa Efe” on the album titled “Gentleman” as far back as 1973.
The confluence of these two revelations—that the phrase in question constitutes traditional knowledge or folklore of the Ashanti people in Ghana, and that the phrase had been used by another (Fela Kuti) artist in his song—makes it almost impossible for Tony Tetuila and Tic tac to now argue that the term (as used by them) is “original”. They cannot possibly argue that they coined the term as the Ashanti tradition is older than both plaintiffs combined, but specifically, they cannot argue that they expended “sufficient effort” in coining a phrase that has been existing before they were giving birth to. As expected, there is no creativity effort whatsoever in a term that is already existing, and that was expressed in the same way another artist had earlier expressed it—on a song.
While the impossibility of overcoming the“originality test” is the writer’s view, the fears expressed here also suggest that the plaintiffs could win their case if they can prove the “originality” in the phrase (specifically in terms of expended “sufficient effort” as required in Nigeria). For example, it is plausible, and it would have been “valid” as “original” if plaintiffs claim they expended effort and were creative in translating some parts of the phrase to Pidgin English (a patois common in Nigeria and Ghana) e.g. the part of the lyric that states “na the beauty of a woman”. Again, while “translation” will easily and justifiablymeet the “sweat of the brow” test requirement, it would most likely do only on an extended and larger work. It is doubtful whether translating four to five words would be sufficient to meet the “originality test” requirement, it is unlikely.In summary, to answer the aforementioned question, because of highlighted reasons, the plaintiff’s lyric in question fails the copyright “originality test” as required statutorily in Nigeria.
On the second rationale why the plaintiffs might not have a case. As discussed above, “fefe na efe” is a folklore expression of the Ashanti people in Ghana, and was introduced to Nigeria by Fela Kuti. Peculiarly, owing to the historical heritage of Africa, Nigeria’s legislature decided to include the protection of folklore in its law. Folklores are protected in section 31 of the Nigeria Copyright Act and defined in its subsection 5 as:
“a group‐oriented and tradition‐based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means including:
(a) folklore, folk poetry, and folk riddles…”
Two questions might be raised. One, is the phrase in question folklore, and second, the phrase in question is Ghanaian, cana Nigerian intellectual property law protect it?
On the first question on whether the phrase constitutes folklore. Reading the definition above points to the assertion of the Ashanti people as a group, but as regards the phrase which by the way is also a proverb , it could be argued that the term “proverb” is not included in the list of examples of folkloreas defined. However, a closer look will reflect that the very first example listed sub-section (a) is “folklore” itself, and as defined by multiple sources,“folklore” includes “sayings” and “proverbs” of a group. For example, the Merriam-Webster Dictionary defines it to mean “traditional customs, tales, sayings, dances, or art forms preserved among a people”. Wikipedia explains that “Folklore is the expressive body of culture shared by a particular group of people; it encompasses the traditions common to that culture, subculture or group. These include oral traditions such as tales, proverbs, and jokes.” [Emphasis added by author]
In summary, it is safe to agree that the phrase in question constitutes“folklore”. To the next question of whether Nigerian law protects Ghanaian folkloreused in Nigeria as this, the answer is yes. Although, the Nigeria Copyright Act is made in Nigeria, and for the Nigerian people, primarily, its aim, like most law, is to envisage and resolve (potential)frictions as in the present lawsuit in Nigeria without necessarily considering the source of the issues in question, and this is the reason why “folklore” as used in the Nigeria Copyright Act do not have a qualification of “Nigeria” folklore.Which means “folklore” as used could have been from any part of the world.
Having established that the phrase in question constitutes “folklore”, we look at the relevant provision of the law on the issue. The bulls-eye provision is in section 31(1)(d) of the Nigeria Copyright Act, it states:
“(1) Expressions of folklore are protected against:
(d) the borrowing of expressions of folklore for creating an original work of an author:
Provided that the extent of such utilisation is compatible with fair practice;”
Basically, an artist like Wizkid cannot borrowfolklore in making their original songs, unless they borrowed it fairly. This begs the question of whether the phrase in question as used was used “fairly” in the song in question. Anyone who has listened to the song will confirm that the phrase was used fairly in the few seconds it was mentioned in the song. Even if the phrase was not used fairly—an act which would constitute an infringement—the right entity to bring a lawsuit is the Nigerian Copyright Commission as the custodian of folklores17, not Tony Tetuila or Tic Tac, the plaintiffs in this case.
The above discourse represents the reasons why the plaintiffs might lose this case. However, we turn to a perceived confusing reason for possible “no copyright infringement”—the exemption there is in “fair dealing” (in Nigeria)18 . First, it should be noted that there is a difference between “fair dealing” as propagated by the UK courts and by extension Nigeria (statutorily), and “fair use” as the norm in US courts.
Basically, yes, the defendant must have used a copyrighted work or an excerpt of it fairly, but in “fair use” as in the US, the question of whether the use of the work is fair is determined by the court, although, the court has some factors it uses in determining this19 . What this means is that there is a level of fluidity and uncertainty as to what the court might consider as “fair use”, e.g. use of large excerpt or large sampling on a song might be considered as “fair use” and not infringing if the defendant “transformed” the use . However, in “fair dealing” as in the UK and Nigeria, there is a fixed statutory list of what will constitute “fair dealing”, e.g. the supposed infringement use must have been for educational use, research, parody, pastiche, etc so that any use outside those instances listed in the law would not constitute “fair dealing”, but an infringement. For Nigeria, “fair dealing” instances are listed in the Second Schedule of the Nigeria Copyright Act (in subsection a), and by extension the relevant subsections in that Schedule. Nothing in the provisions in that Schedule validates what Wizkid and DJ Tunes did in this case, and this explicates why “fair dealing” would be a wrong and detrimental argument for the defendants.
On the contrary, “fair use” would most likely be a valid argument in the US, because one of the factors in determining ‘fairness’ (in “fair use”) by US courts in a similar case is the “amount and substantiality of the portion of the work used”. In this case, the amount of lyrics taken and used from “Fefe Na Efe” in “Gbese” is so minute that the court will most likely find the amount used as falling within “fair use”.
Intellectual property cases and issues are fast developing in Nigeria, recently, there are talks of Sir Victor Uwaifo (a veteran Nigerian musical artist) trying to sue Simi (another new generation Nigerian musical artist) for the use of the word “Joromi” in the latter’s song. While these developments are welcomed, and intellectual property infringements are becoming to be seen as non-victimless civil wrongs or crime, there is a need for Nigerian courts to take the chance to explain intellectual property issues in cases like this that comes their way. This is important so that other holders of intellectual property rights can learn on the type of cases they can bring to court, when and how to enforce their rights. While the case in question (in the writer’s view) is a lost cause, the fact that it was filed, and instigated in a Nigerian court is revered. Hopefully, the court will make the correct pronouncements in the case so that bad precedents are not laid early in the fledgling intellectual property jurisprudence in Nigeria.