Legal implication of P’ Square’s brand, products’ ‘break-up’
It is a legal truism anchored on some certain provisions of the Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004 and some decided English cases to postulate that the products or works of the P Square Musical Brand evolving over 10 years are product of joint authorship and co-owners of the copyrights that both Paul Okoye, Peter Okoye and their estates can conveniently lay claim to under our extant laws.
Under the Nigeria legal climate, the works or products emanating from a joint authorship and co-owners of the copyrighted works, particularly of the P Square Musical Brand are being regulated by the Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004 because they satisfied the requirements clearly stated in Section 1 and 2 of the aforementioned Act. The products or works of the P Square Musical Brand have copyright in them. There are musical works that perfectly scale through Section 1 subsection 2(a-b) of the Act.
According to the Section 11 subsection 6 (a-b) of the Copyright Act, Co-owner is defined as “…For the purpose of this subsection, persons shall be deemed to be co-owners- (a) If they share a joint interest in the whole or any part of a copyright;(b) If they have interest in the various copyrights in a composite production, that is to say, a production consisting of two or more works. In the same length, Section 51 of the act defines joint authorship as,’ a work produced by the collaboration of two or more authors in which the contribution of each author is inseparable from the contribution of the other author or authors.”
We must note at this point that there is sharp distinction between joint authorship and co-owners. While it is imperative to state here that the Copyright Act presently operating in Nigeria did not make any clear-cut distinction between the two words, their meanings can be inferred from the above provisions. Joint authors are at some point co-owners but not all co-owners are joint authors.
The Section 11 of the Copyright act, 2004 is to the effect that the copyright owner can sell, assign or transfer his copyright in any work to another person. The implication of the above provision is to the effect that somebody can acquire the copyright of Paul or Peter in the products of the P Square Brand, and he/she will automatically become a co-owner with Paul or Peter but he/she cannot claim the title of joint authorship. It is against this background that makes me to argue that a co-owner might not be a joint author but every joint author is a co-owner at some point. And the only way a joint author can lose grip of his co-ownership is clearly spelt out in Section 11 of the Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004.
In an avalanche of a long line of decided English cases, the principle developed so far is to the effect that for a claimant to succeed in an action for joint authorship, such a claimant must show that the contribution he/she made towards the creation of the work is significant and original which approximated to penmanship, a direct responsibility for what actually appeared on the work. Joint intention or not, during the creation process is immaterial, in an action for a joint authorship. What the
Court wants to see is the individual`s significant and original contribution in the creating process that led to the joint authorship. This same principle was adopted in the following English cases; Robin Ray VS Classic FM Plc (1998) FSR 622 and Hadley and others VS Kemp and another (1999) EMLR 589.
But meanwhile, in the case, Fisher VS. Brooker (2008) EWCA Civ 287, the Court of Appeal decided that an organ solo which the claimant had contributed to the song ‘A Whiter Shade of Pale’ was significant and original to entitle the claimant to a declaration of authorship. The Court of Appeal however refused to grant the claimant a declaration of co- ownership of the work that seems to have been motivated by the monetary prejudices which such a declaration would have caused to the defendant after 38 years of inaction by the claimant.
Meanwhile, the legal relationship between Paul Okoye and Peter Okoye, after the breakup, in their joint authorship works and co-owners in their copyrighted works has a striking similarity with the principle of tenancy in common which will be seen as the legal implication of the breakup of the P Square Musical Brand on their products. For example, either Paul or Peter has an equal right to possess and make use of every part of the jointly owned work. Both also has the power to make testamentary transfers of an interest and to convey or lease any undivided interest to a third party. Paul or Peter, like tenants in common, is presumed to have an equal, undivided interest in the P-Square Musical BRAND`s products. But this equal interest can be tempered with through written agreement that would rebut this presumption.
Besides, when profits are not made from the use of the work, Paul or Peter may use the work individually without a duty to account. This has a striking similarity with tenancy in common.
Igelige, an entertainment lawyer, wrote from Oleh, Isoko South LGA of Delta State