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Problems for Creative Autonomy in New Business Models

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Creative Autonomy, Copyright and Popular Music in Nigeria

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Abstract

In this chapter, Gani shows how certain business trends adopted by record label executives may have inherent adverse effects on the creative autonomy of performing authors. The chapter highlights A&R uses of television talent shows and the internet as scouting methods to find new musical talent, and shows how the focus of such scouting methods can undermine the creative autonomy of performing authors who are signed on through them. Using examples in the media from winners of shows like Idols and the X-Factor, the chapter shows the tussle for creative control that performing authors may experience. It also highlights multiple rights deals, also known as 360 rights deals, as an avenue through which the authorial autonomy of performing authors may be undermined or circumvented.

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Notes

  1. 1.

    Supra, Sect. 6.3.2.

  2. 2.

    Davis, J, Intellectual Property Law, op. cit., p 68.

  3. 3.

    Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”, op. cit., p 5.

  4. 4.

    Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 82.

  5. 5.

    Infra, Sect. 7.2.

  6. 6.

    Holmes, S, “‘Reality Goes Pop!’: Reality TV, Popular Music, and Narratives of Stardom in Pop Idol” (2004) 5 Television and New Media, pp 147–172, pp 148–150.

  7. 7.

    Ibid., p 150.

  8. 8.

    Ibid., p 150; http://nigerianidol.com/about_show.php (accessed 8 May 2013); Aiki, D, “Nigerian Idol Season 3 Winner Moses Obi-Adigwe Releases 3 Singles! ‘Love in the Air’, ‘Number One’ & ‘Love Letter’ Feat. Eva Alordiah” (August 16, 2013) available at http://www.bellanaija.com/2013/08/16/nigerian-idol-season-3-winner-moses-obi-adigwe-releases-3-singles-love-in-the-air-number-one-love-letter-feat-eva-alordiah/ (accessed 26 February 2020).

  9. 9.

    ‘Glo Naija Sings’ was a show officially sponsored by Globacom, a Nigerian telecommunications company, http://www.gloworld.com/sponsor_naijasings.asp (accessed 8 May 2013).

  10. 10.

    “MTN Project Fame West Africa”, information available at http://www.projectfamewestafrica.com/ (accessed 8 May 2013).

  11. 11.

    With more of such competitions being established, albeit for varying numbers of active seasons, there was also a Gospel show with a similar format known as “Destiny Child”, http://www.destinychild.com.ng/features-columns.html (accessed 8 May 2013).

  12. 12.

    The first two platforms discussed here may be most evident in the practices of recording companies during the ‘pre-contract’ stages of their relationship with performing authors.

  13. 13.

    It appears that the type of recording contracts that are typically used in current times may have also changed in favour of multiple rights’ deals. The legality of some of the elements of recording contracts and contractual practices will be discussed in further detail in the next chapter of this book, infra, Chapter 8.

  14. 14.

    Negus, K, “Musicians on Television: Visible, Audible and Ignored” (2006) 131 (2) Journal of the Royal Music Association, pp 310–330, p 313.

  15. 15.

    Ibid., p 318.

  16. 16.

    Ibid., p 311.

  17. 17.

    Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 99.

  18. 18.

    Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 4 and p 74.

  19. 19.

    Ibid., p 72.

  20. 20.

    Supra, Sect. 2.3.1.1; Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 231; it has been argued that in contemporary business models the independent producer currently satisfies this role by discovering performing authors and creating master recordings which are traded to recording companies, Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 47; however the role of discovering and promoting talent is still central to the music industry and the office responsible for the role may not necessarily alter its functions.

  21. 21.

    Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 21; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 82.

  22. 22.

    Frith, S, “Look! Hear! The Uneasy Relationship of Music and Television” (2002) 21 (3) Popular Music, pp 277–290, p 277.

  23. 23.

    Ibid., p 278.

  24. 24.

    The Nigerian versions of such shows have been referred to, supra, Sect. 7.1.

  25. 25.

    Holmes, S, “‘Reality Goes Pop!’: Reality TV, Popular Music, and Narratives of Stardom in Pop Idol”, op. cit., p 148; “Plan B Hits Out at Simon Cowell and X Factor: ‘Their Work Goes into Their Image’” (2012) available at http://uk.omg.yahoo.com/news/plan-b-hits-simon-cowell-x-factor-work-132327418.html.

  26. 26.

    Holmes, S, “‘Reality Goes Pop!’: Reality TV, Popular Music, and Narratives of Stardom in Pop Idol”, op. cit., p 148 and p 149.

  27. 27.

    Ibid., p 149.

  28. 28.

    The concerns of performing authors as it regards authorship and performance of their works was introduced earlier in this book, supra, Sects. 1.2.2 and 4.2.

  29. 29.

    “Pros and Cons of TV Talent Shows”, available at http://www.vocalist.org.uk/tv_talent_shows.html (accessed 26 February 2020); the business of recording companies is said to involve commercial speculation for music as well as for artists, Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 99.

  30. 30.

    Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 73.

  31. 31.

    Ibid.

  32. 32.

    “X Factor Curse Hits Matt Cardle”, available at https://www.thesun.co.uk/archives/news/634406/x-factor-curse-hits-matt-cardle/ (accessed 26 February 2020); “Will Going on a Reality TV Music Shows Help Your Music Career?” available at http://themusicbusinessbible.com/will-going-on-the-x-factor-help-your-music-career (accessed 26 February 2020) Corner, L, “Rebecca Ferguson: ‘I Told Simon Cowell I Was Writing My Album Heaven’” (2011) available at http://www.digitalspy.co.uk/music/news/a351160/rebecca-ferguson-i-told-simon-cowell-i-was-writing-my-album-heaven.html (accessed 16 February 2020); “Leona Lewis Quits Simon Cowell’s Syco Record Label” (4 June 2014) BBC Newsbeat, available at http://www.bbc.co.uk/newsbeat/27693043 (accessed 16 February 2020).

  33. 33.

    Nixon, T, “Matt Cardle: I Looked a Right Idiot on X Factor” (October 14, 2011) The Sun, available at https://www.thesun.co.uk/archives/news/838418/matt-cardle-i-looked-a-right-idiot-on-x-factor/ (accessed 26 February 2020).

  34. 34.

    Infra, Chapter 8.

  35. 35.

    Corner, L, “Rebecca Ferguson: ‘I Told Simon Cowell I Was Writing My Album Heaven’”, op. cit.

  36. 36.

    Supra, Sect. 6.3.3.

  37. 37.

    Supra, Sect. 7.1.

  38. 38.

    “Interview with Iyanya”, available at http://www.netnaija.com/forum/2141/read-this-touching-interview-with-iyanya.html (accessed 20 January 2013); Awojulugbe, O, “Iyanya: My RnB Songs Were Going Nowhere, So I Switched” (23 August, 2016) The Cable, available at https://lifestyle.thecable.ng/iyanya-my-rnb-songs-switched/ (accessed 20 January 2020).

  39. 39.

    Ibid.

  40. 40.

    Jasanya, O, “Timi Dakolo Exclusive: ‘Reality Shows Come with a Lot of Pressure’” (2012) The Net, available at http://thenetng.com/2012/12/timi-dakolo-exclusive-reality-shows-come-with-a-lot-of-pressure/ (accessed 9 February 2013); Porbeni, B, “Timi Dakolo: Ten Years After Idols” (15 October, 2017) The Guardian Nigeria, available at https://guardian.ng/life/on-the-cover/timi-dakolo-ten-years-after-idols/ (accessed 29 January 2020).

  41. 41.

    Halim, K, “My First Time on Stage Was a Punishment-Christine, Winner, Nokia First Chance Reality Show, 2007” (May 20, 2011) available at http://www.nigeriafilms.com/news/11801/21/my-first-time-on-stage-was-a-punishment-christine-.html (accessed 9 February 2013).

  42. 42.

    Jasanya, O, “Timi Dakolo Exclusive: ‘Reality Shows Come with a Lot of Pressure’”, op. cit.

  43. 43.

    Frith, S, “Live Music Matters” (2007) 1 (1) Scottish Music Review, pp 1–17, p 8; Akinyele, K, “Nigerian Musical Reality TV Shows Are Nothing But Creativity Killing Shows!” (2012) available at http://blog.playmyjamz.com/?p=35 (accessed 9 February 2013).

  44. 44.

    IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information, op. cit., p 3 and p 18; it has been noted that ‘information in digitised form of pictures, text, music, photographs can all be seamlessly disseminated from one side of the globe to the other. There is (almost) nothing to stop these works from being uploaded, made available, communicated, distributed and finally downloaded anywhere in the world’, Waelde, C and De Souza, L, “Moral Rights and the Internet: Squaring the Circle”, op. cit., p 265.

  45. 45.

    “Music and the Internet: A Guide for Parents and Teachers”, available at http://ifpi.org/content/library/Childnet-International.pdf (accessed 12 February 2013); IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information, op. cit., p 19.

  46. 46.

    Edwards, L, “The Fall and Rise of Intermediary Liability Online”, in Edwards, L and Waelde, C (eds), Law and the Internet, op. cit., pp 81–83.

  47. 47.

    “IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information”, op. cit., p 3 and p 19; “IFPI Digital Music Report 2013: Engine of a Digital World”, op.cit. p 5; after years of downward trends, the IFPI reports four consecutive years of growth with significant revenue from digital sales and streaming, “IFPI Global Music Report 2019: State of the Industry”, available at https://www.ifpi.org/news/IFPI-GLOBAL-MUSIC-REPORT-2019, op. cit., pp 12–13.

  48. 48.

    Podlas, K, “The Moral of the Story…Musical Artists Must Protect Their Own Rights in Digital Music” (2010) 10 (3) Wake Forest Intellectual Property Law Journal, pp 265–288, pp 270–271.

  49. 49.

    Supra, Sect. 4.5.2.

  50. 50.

    IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information, op. cit., p 19.

  51. 51.

    Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 82.

  52. 52.

    Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates”, op. cit., p 175.

  53. 53.

    Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 83.

  54. 54.

    Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 142; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 83.

  55. 55.

    Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates’, op. cit., p 175.

  56. 56.

    Supra, Sect. 7.2.

  57. 57.

    “IFPI Digital Music Report 2013: Engine of a Digital World”, op. cit., pp 18–21.

  58. 58.

    Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 2.

  59. 59.

    Waje’s experience is cited as an example of such potential difficulty, Gani, MW, “Negotiating Like a Diva: Preserving Creative Autonomy in the Music Industry” (2019) 3 Wolverhampton Law Journal, pp 37–47, p 43.

  60. 60.

    Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p 49.

  61. 61.

    Forchu, II,“Nigerian Popular Music: Its Problems and Prospects in Development” (2011) 10 (2) Unizik Journal of Arts and Humanities, pp 103–114, p 110; Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p 52.

  62. 62.

    Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry” (2011) 3 (4) Landslide, pp 1–6, p 1.

  63. 63.

    ‘In a nutshell, the new music industry dynamics is characterized by high connectivity and little control’, and Wikstrom further argues that this has altered the ability of recording companies to control the flow of information; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., pp 6–8.

  64. 64.

    Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 23; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 155; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 177.

  65. 65.

    Supra, Sect. 3.3.

  66. 66.

    In addition to the existence of royalty sharing formulas for the use of mechanical licences and the sale of records in recording contracts, it has been noted that recording companies often obtain publishing rights from performing authors without furnishing specific consideration beyond the royalty sharing formula. It may be noted that this practice violates the foundational principle of consideration in contract law; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 191 and p 194; Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 18; this issue will be discussed further, infra, Sect. 8.4.1.

  67. 67.

    Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”, op. cit., p 1; Bouton, D, “The Music Industry in Flux: Are 360 Record Deals the Saving Grace or the Coup de Grace?” (2009) 9 (2) Virginia Sports and Entertainment Law Journal, pp 312–322, p 318.

  68. 68.

    Ibid., p 318.

  69. 69.

    Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 155.

  70. 70.

    “360-Degree Deals—A Label Perspective”, available at http://www.creativelaw.eu/blog/2011/07/360-degree-deals-%E2%80%93-a-label-perspective/ (accessed 15 March 2013); Passman, DS, All You Need to Know About the Music Business (7th ed, Penguin Books, London, New York, 2011), p 103.

  71. 71.

    Ibid., p 102.

  72. 72.

    Negus, K, Producing Pop: Culture and Conflict in the Popular Music Industry, op. cit., p 1.

  73. 73.

    Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry” (2011) 3 (4) Landslide, pp 1–6, p 1.

  74. 74.

    Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 140.

  75. 75.

    The data in Sect. 4.1 of this book shows that creative autonomy is not as big a concern for record labels in Nigeria, as it is a concern for performing authors; accordingly, it has been argued that business models should be designed to fit music, rather than music being modified to suit business trends, Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”, op. cit., p 5.

  76. 76.

    Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 141.

  77. 77.

    Kessler, F, “Contracts of Adhesion—Some Thoughts About Freedom of Contract” (1943) 43 (5) Columbia Law Review, pp 629–642, p 630.

  78. 78.

    Problematic elements in recording contracts will be discussed in further detail, infra, Chapter 8.

  79. 79.

    Kessler, F, “Contracts of Adhesion—Some Thoughts About Freedom of Contract”, op. cit., p 642.

  80. 80.

    Section 11 Copyright Act 2004 (Nigeria).

  81. 81.

    Bouton, D, “The Music Industry in Flux: Are 360 Record Deals the Saving Grace or the Coup de Grace?” op. cit., p 319; this corresponds with Bagehot’s analysis of fairness in recording contracts and this practice thus appears to be an exercise of unequal bargaining power, Bagehot, R, “Star or Slave? Holly Johnson Revisited”, op. cit., p 16; supra, Sect. 6.3.3; unfair bargaining terms will be discussed in the following chapter, infra, Sect. 8.4.

  82. 82.

    Supra, Chapter 4.

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    Mary W. Gani

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Gani, M.W. (2020). Problems for Creative Autonomy in New Business Models. In: Creative Autonomy, Copyright and Popular Music in Nigeria. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48694-5_7

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