SCENARIO “And the winner is…” the presenter of the 2018 Best in Film Awards pauses for suspense. Akan, the producer of the 2018 film “Heartbeat” could hear his own heartbeat, he had to win this! He just had to! So much time and resources had been expended in this project. At the screening all the positive feedback he received had shown that this was it. This was going to be the hit that gave him an award, not to mention the hefty cash price. “Producer of the year” had a nice ring to it. His friend, Magnus rushes into the dimly-lit hall to sit beside him, looking distraught. “Akan, there’s a problem” Magnus says. What could be wrong? Akan wonders before voicing the question. “Heartbeat isn’t winning anything tonight, it’s been disqualified. The award organizers discovered that the music rights was not cleared” Magnus responds. Akan can’t believe it. His phone beeps, it’s a text message from his PA. It reads “just received a demand letter from Croonz’s lawyer. We are being sued!” INTRODUCTION I’m sure we know where this is going. Let’s talk music integration in films. This is the inclusion and use of music or song in a movie. Music does not only mean a song with lyrics and accompanying instrumentals – instrumentals alone is also music i.e. Classical music. Music integration is necessary for any good movie. I think that’s what Bollywood learnt many years ago and have since refused to quit, hence the 3-hour long movies and choruses of “Kuch Kuch Hota Hai” from the “Kuch Kuch Hota Hai” movie. Nollywood has always used music in its movies from the very beginning, so much so that in many Nollywood films the music becomes so entwined with the film that we cannot recall one without the other. For example, the song Treasure by Adax in the film “A Million Tears” starring Kate Henshaw. Hollywood has several examples, a notable one is My Heart will go on by Celine Dion in “Titanic”. Hollywood has also used proudly Nigerian songs for its movie – Wizkid’s Daddy Yo is featured in the 2018 movie titled “Pacific Rim Uprising”. WRONG USE OF MUSIC IN FILM Too many Nollywood filmmakers unlawfully integrate music into their films. The fact that the music has been released and is on the radio for anyone to listen to does not mean it is available for one to use in a movie production. To use music in a movie, the movie producer is required by law to obtain permission from the rights owner. Using music without permission is an infringement of the rights owner’s copyright. The producer can be sued and the money made from the movie can be awarded to the rights owner as damages. Copyright infringement is also a criminal offence which means that the guilty party can be imprisoned or made to pay a fine. Section 10(4) of the Copyright Act places an obligation on every film producer to enter into contracts with all persons whose works (including musical works) will feature in the movie. Therefore, getting clearance for music used in a film is not to be undertaken as an afterthought but should be a matter on the pre-production checklist. WHAT’S IN A SONG? Legally speaking, there are four separate parts to most music and each part is entitled to separate copyright protection:
- Lyrics (the words of the song)
- the composition (the musical notes, tunes/melody)
- the performance (the artist’s performance)
- the sound recording; (the CD or other recording) and
- The composition (which includes the beats) is protected as a musical work and is owned by the person who wrote the music composition;
- the lyrics as literary works and is owned by the songwriter;
- the performance (by the artiste) is protected as performance rights and is owned by the artiste; and
- the sound record (CD/DVD) is protected as sound recordings and is owned by the Artiste for whom the sound record was produced.
- One, the Producer can create its own record of a pre-existing song by using the lyrics and composition of the music. For example, the Producer can have an artiste perform the song Irreplaceable and record the performance for the film project. In this case, the Producer would be required to obtain a synchronization license (this is just a big grammar used to describe permission to use the lyrics and musical composition of the song in a film project). A synchronisation license (sync license) should be obtained from the songwriter/music composer. Where this license is obtained (without the Master Use license described below) it means that only a cover (a new performance/recording by someone else other than the performing artist or composer) of the song can be featured in the film.
- Alternatively, the Producer can use a previously recorded song (i.e. the master recording of the song) in the film project. In this case, the Producer would obtain a Master Use License. This is the more popular way in which Nollywood uses music in films. As earlier mentioned, the right to the master recording is owned by the artiste, unless the artiste has transferred this right to the recording company or any other person. If the artiste is signed up to a record label, it is almost certain that the rights to the master would have transferred to the record label.