Donald Glover, who performs music under the stage name Childish Gambino, recently released a video titled ‘This is America’ where he depicted some social problems plaguing the United States of America especially the problem of gun violence. Not long after the song broke the internet, Nigerian Artist, Folarin Falana, popularly known as Falz released a video titled ‘This is Nigeria’. Falz’s video appears to have been motivated by Gambino’s ‘This is America’. After watching both videos, one would be left with no doubt that both the idea and manner of expression of the video recordings are quite similar. Since Gambino’s video predates Falz’s, it goes without saying that Falz must have watched Gambino’s video and that must have informed the creation of a similar video. However, the setting for Falz’s video is Nigeria and it depicts Nigeria’s peculiar social problems ranging from corruption to insurgency.
There has been a debate on the internet since the release of Falz’s video regarding several fall outs from the video including [from a strictly legal perspective], whether or not same amounts to an infringement on Gambino’s video. This article focuses on the potential copyright implications of Falz’s video in light of Gambino’s earlier release of ‘This is America’. This would be discussed under three heads: Is Gambino’s Video protectable in Nigeria under the Copyright Act, Cap C28 Laws of the Federation of Nigeria 2004?; The Idea/Expression Dichotomy; and Does ‘This is Nigeria’ infringe on the copyright in ‘This is America’.
Is Gambino’s Video protectable in Nigeria under the Copyright Act, Cap C28 Laws of the Federation of Nigeria 2004?
As a general rule, intellectual property rights are territorial and as such the fact that a particular form of intellectual property enjoys protection in a jurisdiction does not guarantee protection in other jurisdictions. This is particularly true of industrial property rights i.e. trademarks, patents and industrial designs – which require separate registration in every country in which protection is sought. However, with respect to copyright, the position is materially different.
Once a piece of work meets the eligibility requirement(s) for copyright, which in Nigeria are originality and fixation by virtue of section 2 of the Copyright Act, Cap C28 Laws of the Federation of Nigeria, 2004, the work becomes copyrightable without more. Originality in this context means that sufficient skill and effort has been expended on the work to give it a distinct character while fixation means the work has been put in a particular form of expression from which it can be perceived, reproduced or communicated. In the United States, there is no requirement of fixation; only originality is required. Once a work has been created, it immediately enjoys copyright protection. Flowing from the fact that registration is not required for protection under copyright, it is quite easy for copyright protection in a work to transcend territories and jurisdictions.
Article 2(7) of the Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’) provides that literary and artistic works as defined under the Convention (which includes dramatico-musical works), shall enjoy copyright protection in all countries that are signatory to the Berne Convention. Article 3(1) of the Berne Convention provides that the protection under the Convention shall extend to nationals of signatory countries and works first produced in one of those countries by non-nationals.
Furthermore, Section 5(1)(b) of Nigerian Copyright Act (NCA), 2004 confers copyright on every work that is first published in a country which is a party to an obligation in a treaty or other international agreement to which Nigeria is party. This is an incorporation of Article 3(1) of the Berne Convention. It is instructive to note that both Nigeria and the United States of America are signatories to the Berne Convention.
Gambino is an American rapper and his video was presumably first published in the United States of America. This brings his work within the purview of works envisaged in the above referenced provisions of the Berne Convention and NCA. This lays to rest any confusion as to whether Gambino’s video can be protected in Nigeria. In light of the fact that Gambino’s work is a subject of protection in Nigeria and in fact enjoys copyright protection in Nigeria, his work can be infringed upon in Nigeria and he can seek redress for such infringement.
The Idea/Expression Dichotomy
The debate as to whether Falz infringed on Gambino’s work has also revolved around the idea/expression dichotomy in copyright law. Some people are of the opinion that all that Falz did was to copy the idea in ‘This is America’ and not the expression. Others have in fact argued that both the idea and the expression were copied. There are some groups of persons that are also of the view that the mere copying of just the idea, without more, would amount to copyright infringement.
For a work to be infringed upon, a substantial part of the work must have been copied. The question whether a person has copied a substantial part depends more on the quality of the part copied than the quantity of what has been copied. Most importantly, the copying must be of the expression of the ideas in the work and not just a copying of the ideas. This brings us to the idea/expression dichotomy. It is quite difficult to draw a distinction between copying the ideas in a work and copying the expression of the idea. The former does not amount to infringement while the latter does. This is premised on the fact that copyright does not protect ideas but only protects the manner in which an idea has been expressed.
The question that begs for an answer is whether Falz merely copied the idea in ‘This is America’ or also copied the expression of the idea. It is indisputable that Falz in fact copied the idea in ‘This is America’ in creating his ‘This is Nigeria’. However, as stated earlier, the mere copying of the idea does not amount to infringement of copyright. On the question of whether the expression of the idea was also copied. This is more of a question of fact than of law.
In ‘This is Nigeria’, Falz made use of a similar setting as the one used by Gambino in ‘This America’. The melody of the underlying songs in the two videos appears to be very similar, although, the lyrics of the songs are entirely different save the repeated phrase ‘This is America’ that was varied as ‘This is Nigeria’. To this extent, it may be said that there was a copying of the expression of Gambino’s idea. Whether the copying is substantial as to amount to infringement is another thing entirely.
Does ‘This is Nigeria’ infringe on the copyright in ‘This is America’
Acting on the assumption that there has been a copying of the expression of idea, it is imperative to determine whether the copying is of such a nature as to amount to infringement.
There is a school of thought that Falz added enough by way of skill, labour and judgment to Gambino’s work as to secure copyright for his effort in ‘This is Nigeria’ and to that extent there has been no infringement. In the eyes of the law, this does not in any way settle the question whether he has infringed on ‘This is America’. The main issue is whether a substantial part of Gambino’s work survives in Falz work so as to appear to be a copy of it. In other words, the alteration of a work alone does not excuse copyright infringement.
A combined reading of Section 6(2) and Section 15 of the NCA shows that there must have been a copying of the whole or substantial part of a work to result in copyright infringement. A close perusal of Falz’s video reveals the substantial features of Gambino’s video in it. In fact, the most significant portions of Gambino’s work which are the sound track, beats, dance, the setting and constant repetition of ‘This is America’ were copied.
In the circumstances, are there any defences that can be raised by Falz? Difficulties arise where a person’s work has been modified with the intent to satirise the work. The copying of a work by way of parody or satire may in fact constitute an exception where there would have been an infringement of copyright. However, this is also difficult to determine. In Joy Music v. Sunday Pictorial (1960) 2 Q.B. 60, a song lyric had been parodied in relation to certain activities of Prince Philip that were considered controversial; but only one repeated phrase was taken and that was with pointed variation. The court held that there was no infringement.
The test of infringement in parody cases set in Joy Music, ‘whether the writer had bestowed such mental labour upon the material … so as to produce an original work’, was however held to be incorrect by Falconer J in Schweppes Ltd & Ors v. Wellingtons Ltd (1984) FSR 210. His Lordship said at p 212: “The fact that the defendant in reproducing his work may have himself employed labour and produced something original, or some part of his work which is original, is beside the point if nonetheless the resulting defendant’s work reproduces without the licence of the plaintiff a substantial part of the plaintiff’s work. The test every time in my judgment is, as the statute makes perfectly plain: Has there been a reproduction in the defendant’s work of a substantial part of the plaintiff’s work?” This reveals the importance of determining whether substantial copying was made by a Defendant.
Paragraph (b) the Second schedule to the NCA provides that the right conferred in respect of a work does not include the right to control the use of the work by way of parody, pastiche or caricature. The next question is whether Falz’s use of ‘This is America’ is satirical. Satire is the use of humour, irony, or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues. In Falz’s video, we saw an attempt to humorise and ridicule the social and political vices in Nigeria. It is not difficult to conclude after watching ‘This is Nigeria’ that it is a satire/parody. Falz presented a critique of the appalling political and social situation of Nigeria through the exploitation of Gambino’s work.
In the overall analysis of the legal issues arising from Falz’s ‘This is Nigeria’ in light of the similarities it bears with ‘This is America’, it is safe to conclude that Falz’s act does not amount to copyright infringement. Apart from the fact that Falz’s use of the work was by way of satire/parody, it is still arguable whether the nature of copying would amount to substantial copying as to justify a finding of infringement especially in light of the substantial alterations and variations in ‘This is Nigeria’ to give it a Nigerian outlook.
Faith Aboyeji graduated with a First Class from the Nigerian Law School and holds a First Class Honours degree in Law from the University of Ilorin. She is an Associate in the law firm of Babalakin & Co and practices law in Lagos, Nigeria.