Truthfully you guys, all I wanted to do this week was just celebrate and enjoy some wonderful music and releases sent to me here on AML. It is the end of the year so presumably I have earned it abi. However, as we all know, it has been crazy especially on the legal drama and music business fronts in the industry lately.
I don’t think it gets crazier than the recent music licensing heated wars between COSON and BON. Stuff just really hit the fan.
SUMMARY OF THE LEGAL BATTLE
If you missed the legal drama between BON and COSON, please reference the following archived AML articles:
1. BON v. COSON | BON’S Announcement Not to Use Nigerian Music Under COSON’S Control is Real and Quite Possible
2. Efe Omoregbe Speaks | BON Threat to Nigerian Artistes: Empty Yet Unfortunate
In summary, The Broadcasting Society of Nigeria (BON) is made up of members who own several prominent TV & radio stations in Nigeria. COSON is a performance rights organization who according to COSON, is the sole collecting society in Nigeria i.e. a performance rights organization. MCSN, an allegedly ex-collecting society, continues to argue that Nigeria’s prior court rulings bestows it the power to also act as a collecting society. To that end, MCSN has sued COSON, among others, in a class action lawsuit. Okay. Are you with me so far on this legal fracas?
While COSON is busy sorting its issues out with MCSN, it has also sued radio stations, television stations and recently Cross River State demanding that it pays licensing fees for use of songs of its artists.
Enter BON. BON members as stated owns several prominent tv & radio stations. BON acknowledges that it indeed should pay licensing fees for use of the works of our artists, please correct me if this argument is inaccurate people. However, what it maintains is that the fees COSON is requiring is exorbitant and COSON has basically an unfettered and unchecked monopoly on the music licensing industry. BON says, “look we should not have to pay these exorbitant amount and if you force us to, then we will stop playing/airing music works of COSON members.”
COSON called BON’s bluff. BON moves forward and stays true to its promise. Now, it has banned all songs by COSON members from being played on its stations. It’s really COSON v. BON the parents fighting like hell on who gets custody of the kids i.e. the artists in this divorce. Mommy and daddy both claim the child’s best interest is what they are after but when you look at their actions, it simply is selfish, ego centric and nowhere close to being exclusively, if at all, about the artists.
Worse, the artists are caught with having to choose sides on who they love the most. YIKES! Arrrrgh. Can I just say I hate divorce and family disputes?
Alright fellas (women don’t do ish like this), sit down. Calm down. Let’s try to take this one step at a time to see if we can resolve what is really a resolvable issue.
1. IN THE FINAL ANALYSIS, THE ARTIST IS AND SHOULD BE THE CENTRAL FOCUS OF ALL PARTIES
Everyone, especially AML artists, you the artists should be the central focus. It is one reason I stress getting involved when it comes to the business of music. Let’s see. You create the music, yet people who are not involved in that process are ready and have drawn blood with more blood shedding to go over your music? What is wrong with this picture?
COSON, BON, there is no way any of you can argue that you are carrying out the interests of the artists right now. ABSOLUTELY NO WAY.
2. (IN COSON VOICE) WELL MS. UDUAK CAN BON GET AWAY WITH THIS BAN?
Responses from third party organizations have been to chastise BON and remind them that they need to play 80% of Nigerian music pursuant to federal regulations of broadcasting organizations. Objectively, BON can indeed do that. First, the country is big and not every artist is a COSON member. In fact, it appears the very popular ones are the only ones that COSON members. Which means maybe our indigenous artist can begin and finally start getting played with no payola involved in some of these radio/tv stations.
Also, it means Nigerians can start enjoying music that does not degrade our women (hey, y’all know I had to throw that in there). So, depending on how you look at it, this could be a great thing for the unpopular yet extremely talented artists who NEVER get played.
So, can BON get away with such ban? Absolutely. There is no mandate that a copyright holder must sign up with COSON or that BON consisting of owners of a commercial music organization must play the songs of COSON members. It’s a choice.
However, in the larger scheme of things, there might be a back door way to get BON on the hook for such ridiculous BULLYING. We will talk about that later.
Why? Well, if indeed the issue is paying COSON’s alleged exorbitant fees, then the solution is easy, really. BON through its legal counsel can easily sue COSON claiming Nigeria’s equivalent of unfair competition and possibly also set precedent that forces the court to deal with the issue of anti-trust/monopoly schemes in the country. To unilaterally say, artists, we are not playing your music because we don’t like the way COSON is doing business is ridiculous, makes no business sense whatsoever, is meant to intimidate and is frankly stupid.
If the goal is that such a manipulative move will drive others to make the same ban, then it again makes no sense and through clever attorneys I believe we have in Nigeria, could subject BON and others to liability. You CAN’T RETALIATE against artists for exercising a legal right granted to them by law to do business with the allegedly only legal sanctioned music licensing organization in Nigeria. To do so, arguably, is unlawful and your attempt and refusal to comply with the law, which gives the artists the power to come after you for such retaliation.
If you do so, then you ought to be dragged into court and given a thorough legal beat down for the nonsense.
3. (IN BON VOICE) BUT REALLY MS. UDUAK, COSON THOUGH, AREN’T THEIR FEES JUST OUTRAGEOUS/EXORBITANT?
I have said and continue to say I am NOT comfortable with COSON being the sole collecting society in Nigeria. I understand the terrible history of the enforcement of intellectual property rights of our artists. I also understand the enormous resources, attention and effectiveness COSON has been able to achieve since becoming a performance rights organization. I get it. However, the music publishing terrain for Nigeria’s music industry is still new, to a large extent. Further, Nigeria has not scored quite high when it comes to transparency and corrupt free practices especially where money is concerned. Also, with the Paul Play kinds of situation against COSON, COSON needs to have a healthy check and balance and I believe in a country with 150million and counting, a healthy competitor in the marketplace will do just that.
I also think BON has a legitimate concern. In the USA, independent royalty boards at set up to adjudicate issues relating to disputes over licensing fees, royalty rates and there are mandated legal statutes that indicate how much songs are worth.
The Nigerian music publishing model seeks to emulate what we have here in the States. Therefore, it ought to have some of these basic infrastructures in place i.e. an independent body that determines licensing fees. This permits disputes like this to be brought before such independent body for adjudication and also reduces all the hoopla so all parties can focus on collecting fees for their members or in the case of BON making money with their respective member owned businesses.
4. DO THE PERFORMANCE RIGHTS ORGANIZATIONS FIGHT LIKE COSON AND BON IN THE USA?
Yes. They do. Everyone has their issues. The grass is never green on the other side, even if it looks that way. The difference is commercial music service providers such as BON do not go engage in retaliation, disguised as so called necessary “drastic” measures. Guy Murray Bruce, give me a freaking break buddy. Are you really serious? Your organization pays rather large amounts in licensing fees for foreign content and programming and have been doing so for years. You mean to tell me that the amount COSON wants from you and BON far exceeds what you have been paying abroad for so long, so much so you have to join forces with BON to sanction such a harsh move that could destroy our music eco system?
Anyway, as I was saying, we in the USA have had our fair share of music licensing wars and two recent cases below illustrate this:
1. Broadcast Music, Inc. (BMI) v. DMX, Inc. 726 F. SUPP. 2d 355 (S.D.N.Y. 2010); and
2. In re THP Capstar Acquisition Corp., 756 F. SUPP. 2d 516 (S.D.N.Y. 2010) involving lawsuits against the American Society of Composers, Authors and Publishers (ASCAP).
The two cases involved disputes over licensing fees. The courts in both cases recognized the government’s mandated fees and the government’s public policy of maintaining and making sure licensing fees were reasonable. The court also came down on BMI as being unreasonable in its licensing fees. Do read the cases above for yourselves.
The moral of the story is that BON may indeed have a valid point that COSON retains a monopoly over the music licensing industry and that it should not. Further, if the law was to insist on giving COSON such powerful monopoly, then there ought to be a check and balance on the fees COSON charges.
Who determines that fees is really what we should be asking. Further, what we should be saying is that those fees should be determined by the government or some independent body created by the government. But, then again can you trust the Nigerian government?
Yikes! This is messy. Folks need to calm the were (craziness) down. Artists need to get involved and let these people know they need to quit messing with your money on both ends and of course, the lawyers need to do the dirty work. They need to roll their sleeves, find solutions that work for Nigeria and Nigeria’s music industry. It also appears the judiciary will need to be trained.
5. WHILE WE WAIT FOR EVERYONE TO GET IT TOGETHER, WHAT IS THE IMMEDIATE SOLUTION?
LEGAL CLAIMS ARTISTS MAY HAVE
1. TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
I think tort law might be the most powerful weapon in this standoff/hostile takeover for the artists in this instance. Nigerian law like the US has a system or body of law called Tort law. Within that system is a legal theory/claim called tortious interference with contractual relations. The key elements is to show:
a) The artist individually or collectively have a contract with COSON, a licensing agreement;
b) BON is aware of the existing agreement;
c) BON has intentionally induced COSON to breach the contract, or has rendered performance impossible on the part of COSON;
d) Then ask for monetary damages, which in this case could be quite a lot given the caliber and amount of artists.
2. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS
The underlying claim is very similar to the contractual relations one.
3. TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC OPPORTUNITIES
Again similar to contractual relations.
The lawsuits would claim that BON is essentially interfering with the ability of the artist to do the legitimate legal business it has to do with COSON. This is because BON is banning the artists music from BON stations solely because of its contractual dealings with COSON. Such banning is an interference and with no other basis than to harm the artists economically. The argument and theories would obviously need to be fleshed out but it seems to be a powerful medium to pursue. Fellow attorneys, feel free to chime in on whether you think this is strong or share your other possible claims.
In terms of other possible claims, I don’t really know Nigerian law as thoroughly as I would like to as to its anti-trust laws, which don’t seem to really exist. Nevertheless, there might be a way to get BON into court to deal with some sort of unfair competition/antitrust claims and seek possible injunction to make them stop on the basis that their actions are retaliatory and have an adverse economic impact on the artists.
It would seem to me the artists as a group would wage the war against BON since they are the affected parties. Maybe a class action? I am really unsure on the right tools given the body of law is not as well delineated in this area. I do however invite all industry stakeholders to have the debate here. Perhaps we may come up with a solution. I don’t think BON’s approach is right in terms of the ban. I do think they may have a valid argument as to COSON’s fees.
Either way, the other simple solution is for COSON and BON to calm the fracas down, go back into the negotiating room, work out the fees and allow everyone to get on with the business of music.
Why? Because everyone loses a lot of money in basically having a Republican and Democrat White House Shutdown. COSON is a business, BON is a business, artists are men and women business owners and at the end of the day, no trouble should be so big that it makes our pockets leak dollars, pounds and naira in a major way when we can all sit in a room and resolve this issue. Hello people?
(Oops, I take that back. The lawyers are the only ones with no problem with the leaks because that is how we stay in business. 
)
Cheers,
Uduak
ALL THE MUD SLINGING RELEASES AND STATEMENTS BELOW
BON BAN AND PMAN RESPONSE
For quite some time now, the Copyrights Society of Nigeria (COSON), has been harassing the Broadcasting Society of Nigeria (BON) and the Independent Broadcasting Society of Nigeria, IBAN, insisting that they pay royalties for playing the songs of Nigerian artists. COSON has dragged several radio and TV stations to court, demanding millions, sometimes billions of Naira in royalty.
Well, it seems IBAN and BON have had enough. Two days ago, they announced the ban of all Nigerian artists registered with COSON. Meaning that they ordered the immediate stop to the airing of songs of artists who are COSON members.
The artists include 2face Idibia, D’banj, Onyeka Onwenu, Iyanya, Banky W, Flavour, Ice Prince, Dr Sid, Olamide, 9ice, M.I, eLDee, Ruggedman, Wizkid, Asa, Waje, Omawumi and several others.
In a statement released and signed jointly by the President and Secretary of IBAN, Sonny Adun and Guy Murray Bruce, the need for such a drastic step was due to “the antagonism and harassment under the leadership of Tony Okoroji (COSON Chairman)”.
The statement in part reads “No person or organisation, particularly a collection society such as COSON has a monopoly of authority over any other…IBAN and BON have the utmost respect for Nigerian artistes in their individual and collective capacities and have indeed contributed more than any known institution to the promotion of Nigerian music and the development of the entertainment industry as a whole.”
They are accusing COSON of arbitrarily imposing and concocting fees which are not based on any agreeable and verifiable tariff and standards.
However Mr Okoroji while reacting to the decision of the broadcasting bodies says the issue here is the strict stand COSON has on the royalties of artist works used on any of the broadcast stations. He says some stations have this attitude of “we can handle COSON” and goes on airing the works of the artist without paying them their due royalty which COSON is strongly against.
Meanwhile the Performing Musicians Association of Nigeria interim president has released a statement on the ban on airplay of Nigerian artists by BON.
PMAN Speaks on the current ban of airplay of Nigerian artists by BON & IBAN
The Performing Musicians Association of Nigeria is appalled by the recent development spearheaded by the Broadcasting Organisation of Nigeria (BON) and Independent Broadcasters’ Association of Nigeria (IBAN) via an official press release yesterday, calling for the immediate airplay ban on all media platforms on content from Nigerian artistes, the association which was created with the sole mission to PROTECT, PRESERVE, and PROMOTE Nigerian musicianshas decided to react on the ban and on-going feud between the Broadcasting Organisation of Nigeria(BON), Independent Broadcasters’ Association of Nigeria (IBAN) and Copyright Society of Nigeria (COSON) calling for an immediate reversal of the ban in the interest of these artistes whom we know that all the above mentioned organisations have their best interests at heart.
The ban on airplay of these Nigerian artistes and their music on various Nigerian media platforms is from our standpointvery unfair, demeaning and discouraging. Weall knowwithout a doubt that these same artistes who have persevered and assisted us to build, today what is known as the Nigerian music industry, Africa’s biggest entertainment export to the world are the same people that are now being victimised. With this action, the association foresees a situation where this ban will, rather than encourage well meaning members of the society, with musical talent to hone their craft and join the success story of the entertainment industry, reverse will be the case. We also foresee a situation where the bulk of the material that will be circulated on nigerian airwaves will be foreign materials, celebrating alien artistes instead of embracing, home grown talent and ourcultural heritage.
COSONin it’s own right by a mandate given to the organisation acts as a collecting society for these artistes, helping to monitor and collect royalties entitled to them. As a collecting society, they have since inception acted as a shield to these artistes protecting their intellectual rights. BON& IBAN are arguing that the tariffs and standards presented to them by COSON should be defended and agreeable with them, but we know that the ban is not the best invitation to the negotiating table.
Article 3.13.2.2 of the Broadcast code issued by NBC says: ‘For the purpose of free-to-air broadcast, Nigerian music shall constitute 80 per cent of all music broadcast’. If this ban is sustained, and 80% of the music played on the various media platforms are foreign material, we should ask ourselves as guardians of the music industry, if these media houses are paying the royalties owed to these foreign artistes, and thereby sidelining Nigerian music by Nigerian artistes, are we supporting them or failing them?We should also ask ourselves, ifthis ban which will invariably affect the rising profile of the Nigerian music industry in the world, economically and in relevance is good for us.
With these ongoing conflicts, lets not forget the owners of this intellectual properties, the music owners, record label owners, recording artistes, the instrumentalists, composers, who have spent time and money producing and packaging, what we know, enjoy and call music, their interests should be siginifcant in these agreements.
In light of all that has been mentioned above we ask again that the ban be reversed and that all the affected parties and major stakeholders in the entertainment industry sit down for a dialogue and reach a favourable agreement, beneficial to everyone involved.
COSON AFFILIATED EFE OMOREGBE’S RESPONSE TO THE BAN
Less than 48 hours after the Independent Broadcasters Association (IBAN) and Broadcasting Organization of Nigeria (BON) issued a statement banning the broadcast of the music of nearly all of Nigeria’s topmost musicians on the radio and TV stations run by affiliate stations, a group of star musicians and top players in the music industry have fired back. Continue…
The group comprising the likes of 2 Face Idibia, 9ice, MI, Azeezat, Ill Bliss, WunmiObe, Dizzy K. Falola and representatives of Burna Boy, Sound Sultan, DammyKrane, Sir Victor Uwaifo, Ice Prince, Sunny Neji, etc met at Whitehouse Hotel, GRA, Ikeja on Wednesday, December 4. One after the other, the music industry stars expressed outrage by the decision of BON and IBAN and their attempt to manipulate the music industry so that they can run away from their responsibility of paying copyright royalties for music broadcast by them.
They rose from the meeting with the following resolutions:
1. That all authors, composers, songwriters, artistes, performers, publishers, record label executives, owners of sound recordings, publicists, managers, etc should ignore the IBAN email and no right owner should send any message to the email provided by IBAN.
2. That no self-respecting right owner of the Nigerian music industry should sell his/her birth right by sending an email to BON or IBAN to request that they play his/her music.
3. That the music industry will consider the stations that comply with their copyright obligations and advice all right owners to move their works to the stations and encourage their fans and followers to support such stations.
4. That a delegation of the music industry is to meet with appropriate political office holders within the shortest possible time on this matter.
5. That all IBAN/BON stations not licensed for the use of music should take note that with immediate effect they should cease to broadcast music whether local or foreign on their stations - These stations must also suspend the use of music whether wholly or in part by way of sampling, interpolation, remixing or outright jacking pending the resolution of this matter.
6. That this movement is a historic fight for the recognition of the fundamental human rights of all creative people in the Federal Republic of Nigeria and no creative person should sell out or allow himself/herself to be made a saboteur in this historic battle.
7. That all important stakeholders in the music industry should make themselves available for a full briefing and Q/A session at a follow up meeting to be held on Tuesday, December 10, 2013 at Rumors Night Club, 15a, Oduduwa Way, GRA, Ikeja, Lagos by 10.00am.
The long list of COSON members said by BON and IBAN to have been banned with immediate effect include TuFaceIdibia, D’ Banj, Inyanya, Olamide, Dr Sid, Sammie Okposo, Banky W, Wiz Kid, Olu Maintain, 9ice, Sunny Neji, Flavour, Chidinma, Rugged Man, Keffee, Midnite Crew, Eldee De Don, M I, Azeezat, Jazzman Olofin, Ice Prince, Jesse Jagz, KC Presh, X Project, Asha, Konga, African China, Owen Gee, Dekunle Fuji, Lord of Ajasa, Zoolezoo, Ekwe Original Stereoman, Danfo Drivers, Rhymzo, DJ Jimmy Jatt, Kofi, Jedee, Muma Gee, AY. Com, ID Cabassa, Klever J, ZidonPoperella, Eva, Terry G, Nomoreloss, Mike Okri, Weird MC, Mode 9, Timaya, Sound Sultan, Waje, Mo’Cheddah, Jay Martins, Slam, Djinee, Solid Star, Omawunmi, TWO, W4, OmotolaJeladeEkehinde, YinkaAyefele, DJ Stramborella, Ebenezer Obey, Victor Uwaifo, Onyeka Onwenu, Dan Maraya Jos, Tony Okoroji, Stella Monye, Floxxy Bee, Funmi Adams, MajekFashek, Daniel Wilson, Alex Zitto, Sir Shina Peters, Ras Kimono, Wale Thompson, KollingtonAyinla, AdewaleAyuba, Wasiu Ayinde Marshal, , Chris Ajilo, Emmanuel Ntia, Orlando Julius, Eddy Remedy, Mr. Kool, 2 Shotz, Baba Dee, Bouqui, Rooftop MCs, Kenny Saint Brown, Klever J, OJB Jezreel, Danny Young, Dipp, Frank D’ Nnero, Ojo, Tim Godfrey, etc.
Efe Omorogbe