A Twitter user, Nupe Foundational Lawyer, has made a statement regarding the copyright infringement case between Mike Ejeagha and Brain Jotter. The lawyer allegedly claimed that the 2 million Naira offered to Mike Ejeagha as compensation for using his song in audiovisuals(skits) is insufficient. The lawyer’s statement suggests that the amount does not adequately reflect the value of Mike Ejeagha’s intellectual property and the extent of its use.

As a student seeking to expand my knowledge of IP Property Rights, I have buttressed and outline the relevant questions, sues, analysis ( judicial authorities, act), and profound solutions if Mike Ejeagha decides to sue Brain Jotter for copyright infringement.
Do you need to copyright your work before suing for infringement? In Nigeria, copyright protection is automatic upon creation of the work, and registration is not mandatory. However, registering your work with the Nigerian Copyright Commission (NCC) provides legal proof of ownership and can strengthen your case in court

In Nigeria, the Copyright Act (Cap C28, LFN 2004) as Amended in 2022, provides for automatic copyright protection, but registration offers additional benefits According to Section 1 of the copyright act its the objective of the state to protect your intellectual property rights,

IDENTIFICATION OF ISSUES:

The First Issue_

Automatic Protection: Is Mike Ejeagha’s song protected by copyright law without formal registration? According to Section 2 of the copyright act, any literally, musical and artistic works , sound recordings, audio visuals are hereby protected. According to Section 5 of Berne Convention of 1886, Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.
Registration Benefits: Will Registering the Song with NCC (Nigerian Copyright Commission) strengthen Mike Ejeagha’s case, if he’s to file a case in Court?
Registering the song with the Nigerian Copyright Commission (NCC) would enhance Mike Ejeagha’s ability to sue for infringement in some situations, but not all. While copyright registration is not requisite for protection in Nigeria, as long as the work satisfies the conditions in Section 2 and falls under Nigeria’s jurisdiction (Section 5), and was made in Nigeria (Section 6(c) of the Copyright Act of 2022), registration provides additional benefits.

In some jurisdictions, lack of registration has been deemed futile to an infringement case. However, in Nigeria, registration can:

– Provide prima facie evidence of ownership

– Facilitate proof of copyright ownership

– Enhance damages in infringement cases

– Deter potential infringers

Thus, registering the song with the NCC would strengthen Mike Ejeagha’s position in an infringement lawsuit, but it is not a prerequisite for protection under Nigerian copyright law.”

Second Issue_: :

Does using someone’s song for visuals amount to copyright infringement? Yes.

Copyright infringement occurs when someone uses another person’s work without permission, primarily for distribution, performance, display, or reproduction, violating the owner’s exclusive rights. According to the federal U.S. Copyright Act, copyright infringement is the unauthorized use of copyrighted material or work, constituting a violation, piracy, or theft of the copyright holder’s rights.

In the case of Brain Jotter, using someone’s song in a skit without permission is a clear example of copyright infringement, similar to using a song in a movie without consent. As stated in Section 36(g) of the Copyright Act of 2022, performing or causing to be performed, for trade or business purposes or promoting a trade or business, any work in which copyright subsists, without permission, constitutes infringement.

Third Issue_:

Did Brain Jotter inadvertently use Mike Ejeagha’s work? No, he’s completely aware of his actions since he intend to offer 2 Million Naira as compensation to Mike Ejeagha for past use of songs in audiovisuals or skits.

Copyright infringement can be both intentional and unintentional, but Brain Jotter’s actions fall under Primary Infringement. Primary infringement occurs when someone directly infringes on a copyright holder’s exclusive rights, such as reproducing, distributing, or displaying the work without permission. In this case, Brain Jotter’s unauthorized use of Mike Ejeagha’s song, regardless of intention, constitutes primary infringement. The Latin maxim ‘ignorantia non excusat’ (ignorance of the law is no excuse) applies, emphasizing that lack of knowledge or intent does not absolve one from liability..

Brain Jotter committed primary infringement by:

Using Mike Ejeagha’s song directly for his skits without permission.
Performing or displaying the song publicly without permission, inducing the public with Mike Ejeagha’s work.

By doing so, Brain Jotter exploited Mike Ejeagha’s song indirectly, without directly creating or reproducing the infringing work. Instead, he publicly performed and displayed the song in his skits without permission, constituting primary infringement.

The case of Dreamland Ballroom, Inc. V. Shapiro, Bernstein & Co. Sets a precedent, where a dance hall was held liable for the unauthorized public performance of musical works by an orchestra they hired. Similarly, Brain Jotter’s actions make him liable for primary infringement, as he facilitated the public performance and display of Mike Ejeagha’s song without permission

Fourth Issue:

Are the elements of copyright infringement clearly present in this case? Yes, technically:

Original work: The song is the original work of Mike Ejeagha sunged in 1983.
Substantial use: Brain Jotter substantially used Mike Ejeagha’s song without permission. By Section 36(2) The doing of any of the acts referred to in this section shall be in respect of the whole or a substantial part of the work either in its original form Or in any form recognisably derived from the original.
These two elements establish a prima facie case of copyright infringement. By using a significant portion of Mike Ejeagha’s original work without authorization, Brain Jotter has violated Mike Ejeagha’s exclusive rights as the copyright holder. In the US Case of Ali V Final Call Inc To establish a prima facie case of copyright infringement, the plaintiff must prove two things; :a, ownership of a valid copyright (registered) in the work, and b, copying of constituent elements of the work that are original.

DEFENCES:

Preferred Defences that can be raised by Brain Jotter’s Counsels in Court
Brain Jotter may raise the defense of fair use which is an affirmative defence to escape liability,

To succeed in this defense, Brain Jotter would need to demonstrate that his use of Mike Ejeagha’s song meets the following criteria: The copyright act 2022 provided exceptions to use of copyright works,
Purpose: The use of the song is for a legitimate purpose, such as criticism, commentary, news reporting, teaching, scholarship, or research.
Nature: The song is a published work, and the use is transformative (i.e., it adds value or insights to the original work).
Amount: Only a substantial portion of the song is used, and it’s necessary for the intended purpose.
Effect: The use does not harm the market for the original work or its derivatives.
By arguing fair use, Brain Jotter may claim that his use of the song is excused due to its transformative nature, limited scope, and lack of harm to Mike Ejeagha’s market interests. However, the court would ultimately decide whether Brain Jotter’s use meets these criteria.

As a counsel to Brain Jotter, I would establish another non-statutory defense of acquiescence: The defense argues that Mike Ejeagha, the copyright owner, has been aware of Brain Jotter’s use of his song for skits or visuals for a significant period without taking any action to stop it. Additionally, Brain Jotter can raise the defense that he did not exploit the owner’s work for commercial gain. He can argue that his use of the song was not intended to profit from Mike Ejeagha’s intellectual property, but rather for creative or transformative purposes.By establishing these defenses, Brain Jotter can argue that Mike Ejeagha’s in taking non- action against Brain Jotter’s non-commercial use of the song mitigate against a finding of copyright infringement.

SOLUTIONS:

Solutions for Settlement Out Of Court:

If Mike Ejeagha decides to sue Brain Jotter for copyright infringement, are they any negotiable out-of-court solution that could be used to appease or compensate the injured party(Mike Ejeagha):

Royalty payments: Mike Ejeagha can accept royalty payments as compensation for Brain Jotter’s use of his songs in audiovisuals.
What are Royalties? They are payments made to the owner of intellectual property (in this case, Mike Ejeagha) for the use or purchase of their creative works. This solution allows Brain Jotter to continue using the songs while providing fair compensation to Mike Ejeagha.

Other possible negotiable solutions could include:

Licensing agreement: Brain Jotter obtains a license to use Mike Ejeagha’s songs, with agreed-upon terms and conditions.
Settlement fee: Brain Jotter pays a one-time settlement fee to Mike Ejeagha for past infringement.
Attribution: Brain Jotter gives credit or attribution to Mike Ejeagha for his work in future uses.
Limited use: Brain Jotter agrees to limit his use of Mike Ejeagha’s songs to specific contexts or platforms.
These solutions aim to find a mutually beneficial agreement, avoiding the need for litigation.

REFERENCES:

Relevant Authorities and Judicial Authorities Cited in Support of Arguments:

Copyrights Act Cap LFN 2004 and 2022 Act
Berne Convention of 1886
US Federal Copyright Law

Related Provisions:

Muhammad Ali V. Final Call Inc
Section 1, 2 and 2(3) of Copyright Act 2022
iii. Section 36 of the Copyrights Act of 2022 respectively.

Dreamland Ballroom, Inc. V. Shapiro, Bernstein & Co

Online Sites and Articles:

“Parody as a Defence to Copyright Infringement in Nigeria”. Thttps://www.mondaq.com/nigeria/copyright/1402176/parody-as-a-defence-to-copyright-infringement-in-nigeria
“Copyright Infringement Defence” https://www.klemchuk.com/copyright-infringement-defense
“Nigerian Copyright and the Protection of Creatives. “
https://inventa.com/en/news/article/812/nigeria-copyright-and-the-protection-of-creatives

“Fair Use And Fair Dealing: An Analysis Of Copyright Law In Nigeria”
https://lawpavilion.com/blog/fair-use-and-fair-dealing-an-analysis-of-copyright-law-in-nigeria/amp/

‘Copyright Registration IN nigeria : The Procedure And benefits”. https://www.resolutionlawng.com/copyright-registration-in-nigeria-the-procedure-and-benefits
“Royalty Payments”
https://tipalti.com/mass-payments-hub/royalty-payments/#:~:text=Essentially%2C%20royalty%20payments%20are%20payments,gas%20extracted%20from%20their%20land.

Brad Swenson ,”Intellectual Pr Intellectual Property Protection thr otection through the Berne Conv ough the Berne Convention” .
Strachan Partners, “Copyright Protection IN Musical Works In Nigeria “
Aniche, Charity Ngozi PhD and Umeh, Samson Obi, PhD, “The Impediments of Facing The Court in Copyrights Enforcement in Nigeria”.
Disclaimer: These are my analyzations on the issues likely to emerge and play in this case.