Highlights from Knowledge Sharing Conversation of Intellectual Property Lawyers Association Nigeria (IPLAN) 31st July, 2024
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Introduction

On July 5, 2024, Chukwuebuka Emmanuel Amuzie, aka Brain Jotter, released a video challenge on Tiktok and other social media platforms. The video challenge depicted Brain Jotter dancing to a refrain with a hook, “Gwo gwo Gwo Ngwo” from the song ‘Ka Esi Le Onye Isi Oche’ written and performed by Pa Maichael Ejeagha, aka Gentleman Mike.
Ka Esi Le Onye Isi Oche is a highlife folktale of how the wily Tortoise won the King’s daughter’s hand in marriage after tricking the Elephant to submit to the King in an elaborate ruse. The Challenge was quickly followed by widespread criticism and claims ranging from daylight robbery to outright copyright infringement!
This highlight raises key facts from the conversation and a summary of lessons for Creators and their Lawyers.

The Facts
Pa Michael, a 93 year old veteran highlife singer/songwriter who hails from Owa in Ezeagu Local Government Area of Enugu State, has had an illustrious career in Nigerias music industry. Pa Michael released the song ‘Ka Esi Le Onye Isi Oche’ in 1983 during which time he was signed to Premier Records Ltd (PRL) under a contract that ultimately became the subject of litigation many years later. That dispute was ultimately settled out of Court and is the subject of another story.

Under the terms of their Contract, PRL RC3317 and its subsidiary Premier Music Publishing Company Limited RC690473 (PMPCL) are responsible for the digital distribution of the song to streaming and social media platforms like YouTube Music, Deezer, Spotify, etc.
PRL and PMPCL placed Pa Michael’s catalog on various streaming platforms. Following renegotiated terms, it was agreed that Pa Michael would receive 20% of revenue generated from the Sound Recording (Masters) and 50% of the revenue generated from the Musical Copyright (Songwriting/Publishing).

The Gwo Gwo Gwo Ngwo Challenge is User Generated Content (UGC) that was created using a copy of the song ‘Ka Esi Le Onye Isi Oche’ licensed to TikTok. The viral challenge has been accepted by Celebrities and Netizens from all over the world on different Social Media platforms.
The original challenge video has amassed millions of views across various social media platforms.
In addition to introducing Pa Michael to a new generation of listeners, the song ‘Ka Esi Le Onye Isi Oche’ has witnessed a massive increase in streams across music streaming platforms.

Legal issues from Social Media Challenges
A Challenge is a User-Generated Content (UGC) used by Creators and Brands to engage members of their community.
UGCs can take many forms:
Creators challenge their followers to perform an action, such as completing a dance move, using a specific filter or lip-syncing. The response videos are published with a specific hashtag to make the content visible.
Social Media platforms like Facebook, Instagram and TikTok facilitate the creation of UGC with features such as Remix, Duet and Stitch. These platforms give Creators access to an array of media editing tools and catalogs of licensed musical works sourced from the Public Domain and Digital Distributors. Popular 2024 Challenges include the #BlackoutChallenge, #Don’tRushChallenge and #Cha-ChaSlideChallenge.
UGC that claims to be public commentary or parody raise complex legal issues.
Although these voices that serve as public commentary or parody play an essential role in cultural dialogue and creative expression, Content creators should pay attention to the nuances of fair dealing and risks of copyright infringement.

Lessons from the Conversation
1.  When UGC is created on a social media platform, the Terms and Conditions and Policies of that Platform apply.
2.  Licensed Musical Works contained on Social Media Platforms may be used to create UGC subject to the Terms, Conditions and Policies of that Platform.
3.  UGC (even regenerative UGC) is protected by Copyright Law. The unauthorized use of UGC may lead to an infringement claim.
4.  The following factors are to be considered to determine whether a work incorporated into UGC falls within the Fair Dealing exception
a. Purpose and character of its usage,
b. Nature of the work,
c. Amount and substantiality of the portion used in relation to the work as a whole, and
d. Effect of the use upon the potential market or value of the work;
5.  When negotiating with a Record Label, Musicians should pay attention to
a. Who retains Creative Control of the work
b. Ratio split for Royalties and Streaming Income
c. Contract Termination and Renewal
6.  IP Mediation is best suited for resolving IP and Entertainment Industry disputes. The mediation process is structured, faster, discreet and leads to win-win outcomes for all parties.
7.  Avoid discussing and negotiating contract terms without consulting your IP/Entertainment Lawyer (you can find IP Lawyers close to you in our online Directory).