It is not uncommon to sight pirated copies of movies and books on open display. It seemed to be generally acceptable but with the discovery of how much more profit can be made with the elimination of piracy, artists have turned to the courts to press for charges. It will be wrong to think copyrights are restricted to faceless plagiarists or pirates on one end and a popular artiste or musician on the other end. Sometimes, it is between two popular artistes or one popular artiste and a less known one.
The recent and most trending being that of Sir. Victor Uwaifo, a legend of highlife music and recipient of several awards alleging Simi Ogunleye of robbing him intellectually as regards her usage of ‘Joromi’ in her song.
Joromi is the second song on the Simisola albulm. I know because I listen to the album everyday. Sir. Victor Uwaifo’s Joromi was released in 1969. I know because I have listened to it so often that I can sing along to the guitar work from start to end. I am a fan of both Joromis but I have to choose the Joromi with a better case in court in the course of this article.
There is a lot to consider if one would arrive at a veritable conclusion on if Simi did infringe Sir. Victor’s copyright.
1. Did ‘Joromi’ exist before Sir. Victor’s work?
2. Can ‘Joromi’ as a name or fictional character be copyrighted?
3. Does copyright protection under extant Nigerian laws cover the usage of ‘Joromi’? Section one of the Copyright Protection Act settles this.
4. Is Simi’s Joromi an unauthorized adaptation which can render her liable?
5. Did Simi infringe any copyright?
6. What are the defences availing Simi against Sir. Victor’s claim?
There is also the contention of if a fictional character can be copyrighted. Thus, can a person who is nonexistent but a figment of imagination in a work of art have his name as copyright? Well, in the United States, it is impossible to copyright your own name. In Nigeria, section 1 of the Copyright Protection Act lists what can be copyrighted as;
(a) literary works;
(b) musical works;
(c) artistic works;
(d) cinematograph works;
(e) sound recording; and
The contention is not that Simi infringed rights to the song or copied the musical composition or sound recording. The contention is the usage of the name Joromi which can arguably have existed before then. Is a fictional name protected as copyright? No, it is not.
It needs to be examined too if Simi’s song is an adaptation of that of Sir. Victor in any way. Adaptation is referred to in the Act as “the modification of a pre-existing work from one genre of work to another and consists in altering work within the same genre to make it suitable for different conditions of exploitation, and may also involve altering the composition of the work;”
Adaptation is the strongest case of Sir Uwaifo. He can lay claims to adaptation better than he can to the trademark of a folklore name. However, can adaptation even subsist?
Simi still has the defence of not adapting the song and her song having an entirely different composition and story line or ultimate objective. She has the work of differentiation to do between both works.
Did Simi infringe aby copyright? It is not one which a verdict can be given as there may exist better arguments or even case laws nullifying the earlier positions But from all indications, there was no infringement of Sir. Victor Uwaifo’s copyright.
The defences availing Simi are several and they range from the existence of the name which Sir. Victor claims was copyrighted and is a franchise. It is quite interesting the supposed grudge of Sir. Uwaifo does not cover the composition or the lyrics of the song. It merely has to do with the name ‘Joromi’. Simi also has the better part of the laws on her side as it still remains a source of surprise under which provision of the law Sir. Victor Uwaifor would employ in laying his charge.
While trademark names can be infringed, it is uncertain and unlikely if a fictional name in a work of art can have a copyright. It is unlikely because copyrights do not cover under the present spectrum fictional names especially as seen in the first section of the Nigerian Copyright Protection Act.
Where characters can even be copyrighted, names cannot be copyrighted. You can for instance copyright Harry Potter and you can write another book with the same name in it; you cannot write about a wizard boy with a wand and a scar on his head.
The uniqueness of the character can subsist but the name cannot. Thus, even if you write a book and create a character like Harry Potter and name him something else, a case against the author for copyright infringements will subsist in a court due to the similarities of character but not the same in a case for similarities of names. The Joromi in Sir. Victor’s shares a name but not the same character as they did different things entirely. While one was a wrestler, the other was a loverboy.
It will be an interesting case if Sir. Victor surpasses mere threats and actually initiates a suit. But it seems he is open to discussions on it as he awaits the decision on his charge against Pepsi where he is suing for 500million for infringement of Arabande (another song of his).
One must appreciate the brilliance and multitalented nature of Sir. Victor Uwaifo in creative arts and music. His roles in the academia are also noteworthy. His contributions are now to the development of case laws on copyright and they are appreciated as like he did in his younger days holding the olympic torch internationally for Nigerian music, he now boosts and strengthens copyright laws and intellectual property law with his actions that will enrich the repertoire of case laws in Nigeria on the issue.
However, in the case of Simi’s Joromi. Hold him before he goes to court.
Koye-Ladele Mofehintoluwa Oluwadetan is a student studying law at Obafemi Awolowo University Ile-Ife who believes there should be a balance in the distribution of wealth and the society should move onwards.