Be aware of copyright infringement!

A couple of weeks ago, the up and coming rocking DJ and house music producer, Nkhensani Mabaso, aka DJ Kent, released his much anticipated solo project, the ironically titled, ‘Mixing Business With Pleasure’. While some of us were very happy that Kent has finally made it, hardly two weeks after the release, it was alleged that SonyBMG and Universal Music had logged a theft of intellectual property complaint with Soul Candi – Kent’s album distributor. Left with no choice, the distributor had to recall all the copies that were already on the music retailers’ shelves.

It is alleged that there were a few songs on ‘Mixing Business with Pleasure’ that were not cleared properly or not cleared at all for that matter. Those in the know say Kent used accapellas of several international artists without their label’s approval, which ignited the two major labels to call for the album’s removal.

Even though the matter has been kept under wraps, it was not a surprise to realize that 88 Productions – [Kent’s independent recording label which he co-owns with Tumi Mokitlane] were hesitant to divulge much at all regarding the matter for now. MIO felt a need to take a look at the matter so as to highlight a few things regarding copyright infringement and why it is a serious issue.

Talking to Jonathan Shaw, a business consultant to the music industry about what might have happened that resulted in the album being removed from the shelves, he said the artist or their label\publisher failed to adhere to the specific rights granted under the copyright act given to the owner of the work infringed upon. “Essentially, the infringement causes the rightful owner to take action for having their property used without permission.”

The first steps or rules that should have been followed when remixing someone’s song so as to avoid situations like this should have been to gain permission from the original rights holder before using the work. If permission is not granted, Shaw said one cannot use the work. In the case of sampling, he said both composition and sound recording rights can exist which belong to different entities and since the sample is used to create an adaptation of the work, a mechanical right, administered by a rights organization, cannot simply be used because the composition is not used in its entirety.

If one were faced with copyright infringement, what would be the worst case scenario? “There is no precedent as most infringement cases have been dealt with out of court. The worst penalty is paying a large sum of money as relief to the owner of the infringed copyright. That can reach into hundreds of thousands of rands. Also, copies of the alleged work can be recalled, with court action or a settlement.”

It is with no doubt that in issues such as this, the person who is accused might even suffer a professional loss, destroying their reputation in the industry.

Predicting the way forward in this matter, he said the owner of the original work/s may consider the commercial value in the release and may negotiate a portion of the proceeds with the artist/label. This, however, may lead to the owner having a substantial interest in the adapted work leaving the artist with little and having to pay damages which results in the original owner having the most gain – but letting the artist/label off with a slap on the wrist. The cost of amending album covers and reprinting would probably also be the burden of the infringer.

Asked what does the album being taken off shelves mean to the person who is accused and the label representing the artist? He reckons that if the label paid for the remix and the remixer was fully compensated for his time and signed off all rights to the label, the label can be fully liable. If the remixer has a contract in which he stated that what he did infringed no copyright, then the remixer may bear the full brunt of the damages (this is common in recording contracts). If there is no contract, the label and remixer may be found to have infringed equally and share in the damages together.
The attempt to get comments from 88 Productions drew blanks as Tumi Mokitlane, 88 Productions co-owner said, “We are not willing to talk about the matter right now; it is still a sensitive issue.” Trying to speak the man alleged to have infringed the copyright, DJ Kent, all he was willing to say was, “Sony said there was one song that we didn’t clear properly, we are still going to meet with them and see how we can resolve this.”

According to Ricardo da Costa, Soul Candi Managing Director - label responsible for the distribution of the album, said Soul Candi was not in anyway responsible for song licensing on Kent’s album. “Our job is to distribute the album; the other logistics are for 88 Productions – which is responsible for all the work, including licensing and ensuring that everything is in place.” He said their duty in regard to the matter as a distributor was to then recall the stock distributed throughout the country and have it destroyed. It is believed that there is a new master in progress and will be re-released as soon as it is ready.

After all this, SA music producers do have something to learn, especially if they are intending to remix someone’s song. There is a reason why remixes work, partly because they are capitalizing on the prior success of another work, and partly because they allow for creative re-invention. As a producer/remixer you need to understand music rights and get permission to exploit those rights before sampling or remixing someone else’s work. According to Shaw, education on copyright is lacking, although ignorance is not a good enough excuse. He reckons if most artists knew what to do, cases like copyright infringement could be easily avoided.

It is essential to respect the rights of other people in the music business. For people that do infringe upon others rights, this will just ruin any chance of a long-term career in the industry. We hope 88 Productions will this time around get their paper work sorted and pick up from where they left off. What just happened should be a learning experience; it is unfortunate that it might have cost them a fortune.

The whole article can be found by visiting www.mio.co.za/article.php?cat=&id=1239