Danladi v Tiwalope Savage and another - (Nigerian) “Blurred Line” or “Shape of You”?

As some readers will know, music artist popularly known as Danny Young (real name: Ajibola Muyiwa Danladi) brought copyright infringement proceedings against Tiwa Savage (Best African Act, MTV Europe Music Awards 2018) and her record label, Mavin Records Ltd (the “Defendants”). Danny Young has claimed the sum of N200million (approximately $560,000) for copyright infringement regarding his song, “Oju Tiwon” and N5million (approximately $13,000) for cost of the action. In addition to these monetary claims, Danny Young has also claimed an account of profits as well as injunctive and declaratory reliefs. See the claims here.

Background – YouTube “court” and alleged infringer’s silence  

Danny Young: Instagram

The background to this action is a statement published by Danny Young on his Instagram account in November 2018. Danny Young accused Tiwa Savage of stealing lyrics from his song “Oju Tiwon” for her (Tiwa Savage) song “One”. The allegedly stolen lyrics and musical composition was a Yourba (one of the 3 major languages in Nigeria) prayer “O d’odun lan ri orogbo, o do’dun lan ri ahusa, o d’dodun lan ri omo obi lori igba”, which appeared in both “Oju Tiwon” and “One”. The line is a Yourba prayer of longevity. When referred to a person, it is said that as “we see bitter kola every year, we see walnuts every year, we see kola nuts every year, we shall see you each year”.

In pointing out the alleged “theft”, Danny Young placed side-by-side a video of the portion of “Oju Tiwon” where he sang the prayer and the portion of “One” where Tiwa Savage sang the same prayer stating that his fans who have listened to the two songs drew his attention to the similarity between the lyrics and the sound of the prayer in the two songs.

Following that claim, YouTube, in January 2019, took down “One” from Tiwa Savage’s channel. However, YouTube restored the music video to the channel this month (March 2019) and was alleged to have stated that it found the infringement claims to be unfounded.

Danladi v Tiwatope Savage and Mavin Records Ltd  

Tiwa Savage: YouTube Channel

In February and while Tiwa Savage’s “One” was still unavailable on her YouTube channel, Danny Young instituted an action at the Federal High Court, Lagos and published the writ and his claims on his Instagram page. Danny Young’s claims relate to the acts of “copying, performing, recording, reproducing, communicating to the public, distributing and broadcasting” his “musical composition, musical work and melody” and the “literary work and music lyrics authored and owned by” him. As stated earlier, he also claimed both damages and an account of profit as well as orders of perpetual injunction restraining further infringing acts.

Copyright infringement under the Nigerian Copyright Act
By virtue of Section 15(1)(a) of the Nigerian Copyright Act, any person who without the authorisation of the copyright owner, does or causes another to do any act, which is controlled by copyright would be liable for copyright infringement. The acts controlled by copyright depend on the category of protected work (i.e. whether it is a literary, musical or artistic work or a sound recording, broadcast, cinematograph film etc.). However, acts of reproduction, copying, distributing, communicating to the public, performing etc. are usually applicable to all categories of protected works and are exclusive to the author or copyright owner. See sections 6,7 and 8 of the Copyright Act.

Under Section 16(1) of the Copyright Act, the reliefs of damages, injunction, accounts or other reliefs available to plaintiffs in an action for infringement of other proprietary rights are also available to an owner, assignee or an exclusive licensee of copyright in an action for copyright infringement. However, the relief of damages shall not available where it is proved or admitted that an infringement was committed but that at the time of the infringement, the defendant was not aware and had no reasonable ground for suspecting that copyright subsisted in the work. The appropriate relief in such a case is an account of profits in respect of the infringement.

Some thoughts
Regarding the claim for declaratory reliefs as to infringement, it is noted that in most cases where the plaintiff alleges that part of his musical work and/or sound recording was copied, such plaintiff has had to procure a musicologist report to show the similarities in the two works. See here and here. Accordingly, it would be interesting to see how Danny Young leads evidence to show the infringing acts and whether a musicologist report would be needed and/or provided.

While this Africa Correspondent is no musicologist, she did listen to two songs. In terms of lyrics “O d’odun lan ri orogbo, o do’dun lan ri ahusa, o d’dodun lan ri omo obi lori igba, my life don better”, there are similarities in the complete sentence and melody. But, Tiwa Savage’s version appears to have a different key and tempo (thanks to my choir days). Now, whether (a) Danny Young can argue the similarities in lyrics/sentence in his favour or (b) whether the defendants can argue the disparities in tempo and key to their favour, will depend on the strength of their evidence and will be a decision for the court to make.

Furthermore, the Nigerian Copyright Act (like other copyright laws) makes originality a criterion for a work to be eligible for copyright protection. According to section 1(2)(a), a “literary, musical or artistic work shall not be eligible for copyright unless sufficient effort has been expended on making the work to give it an original character”. In view of this, would a Yoruba (traditional) prayer common and known to the Yoruba race, lovers and observers of Yoruba language and culture, be eligible for copyright protection? If the answer is “no”, does that mean such traditional prayers which are traditional cultural expressions, are outside the realms of copyright protection? And if one answered in the affirmative, would that amount to promoting the “copyrighting of culture”?

On the claim for perpetual injunction, it is to be remembered that a work will not be ineligible for copyright merely because the making of the work or an act in relation to the work involved infringement of copyright. See Section 1(4) of the Act. In view of this, it may be difficult to procure an order of perpetual injunction where as in this case, the infringement claim relates to a portion of the song, “One”. It is opined that in practical terms enforcing a perpetual injunction over the “prayer” may be problematic to the copyright that may subsist in the remaining part of “One”. In the circumstances, a claim for declaration as joint author may be more practical and align with the provisions of section 1(4) of the Copyright Act.

On the propriety of the claim for damages and account of profit vis-à-vis the provisions of section 16(3), a lot depends on the defence (if any) to be put up by the defendants. If the defence goes like the Blurred Lines case where Robin Thicke had admitted in an interview that “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, Damn, we should make something like that, something with that groove", Danny Young may only be entitled to an account of profit.

In calculating such profit, the courts usually consider the net profit (gross profit excluding all expenses in the production of the work) obtained directly as a result of commercial dealings with the infringed work and not necessarily the entire business of the defendant. See Plateau Publishing Co. Ltd & Ors v. Chief Chuks Adophy (1986) 4 NWLR (Pt 34) 205. Accordingly, in the instant case, profits and royalties from other works owned by Tiwa Savage will not be included. Given that “One” was only released in November 2018, there may be not much profit to speak of and most certainly not in the region of N200million.

What happens now?
The case continues. The defendants have 30 days from the date of service of the writ and statement of claim to respond by filing a defence. While this case has the makings of resulting in a landmark copyright judgement in the Nigerian music industry, it is also possible for Danny Young to unilaterally withdraw the suit or for parties to decide to settle out of court.

The Nigerian Copyright Commission (NCC) recently reiterated its commitment to set up an alternative dispute resolution centre for copyright disputes. While such centre will not replace the courts, it may offer an avenue for disputes and claims of infringement relating to similarities, to be resolved.

Watch this space...