Unlike many other entertainment lawyers, my career has been deeply rooted in the courtroom. Like many other fresh graduates from law school, my journey began as a traditional litigator, drawn to the intensity and excitement of courtroom battles before I finally found a way to fuse entertainment and law into my practice. There was something magnetic about the drama that unfolded in those hallowed courtrooms—judges listening intently as lawyers presented their cases, meticulously weighing facts against the backdrop of legal principles and case laws on an invisible scale of justice. I found my footing in this world where judgment and justice often seemed intertwined, revelling in the thrill of advocacy and the pursuit of fairness and justice.
I remember one of my mentors once shared a piece of wisdom that stayed with me: “The truth doesn’t always win in court—whatever wins in court is the truth.” At that time, I believed this statement was based on legal knowledge and a lawyer’s will to succeed at all costs. But as I progressed in my career, I realized it was far deeper than that.
The reality of this statement hits me harder while reviewing the judgment delivered by the Federal High Court in Sir Jude Nnam vs Five Star Music Ltd and 2 Others (Suit No: FHC/L/CS/304/2021), which has consequently prompted me to write this Article.
The case revolved around alleged copyright infringement of the song “Som Too Chukwu,” written by Sir Jude Nnam, which was used without his consent in the “Cultural Praise Vol. 1” album by Kingsley Chinweike Okonkwo (popularly known as Kcee). In that moment, I understood that what wins in the courtroom may not always align with moral or absolute truth, but rather with how facts and law are presented and interpreted.
(to read more about the facts of this case, click this link: https://www.vanguardngr.com/2024/10/court-dismisses-n500m-copyright-infringement-suit-against-musician-kcee-e-money/ )
This case is a powerful reminder of the importance of a lawyer, not only knowing the law but deeply understanding the industry context in which your case is set. Presenting and interpreting your arguments in the most reasonable and justifiable sense becomes critical, especially when the law and facts, though seemingly on your side, are subject to interpretation.
In the case of Sir Jude Nnam vs Five Star Music Ltd and 2 Others, the court was faced with the task of interpreting a fundamental issue in copyright law: what qualifies a creator for copyright protection, particularly the concept of originality.
In Nigeria, the requirements for copyright protection are clearly stated in the Copyright Act of 2022. For a work to be eligible for copyright:
- The creator must have expended sufficient effort to give the work an original character.
- The work must be fixed in a tangible medium of expression, from which it can be perceived, reproduced, or communicated to the public, either directly or with the aid of a machine.
The Act further clarifies that the quality of the work is irrelevant to its eligibility for copyright protection, and a work does not lose its copyright status simply because its creation or any related act involved the use of copyrighted material from other sources.
However, in Sir Jude Nnam’s case, the court’s interpretation of these provisions took a different path. Kcee, the 3rd defendant, argued that the tracks on his album Cultural Praise Vol. 1 were distinct from any of Sir Jude’s works. He claimed that his inspiration came from the Igbo-translated Bible, which was not authored by Sir Jude, and thus, Sir Jude could not claim copyright over the content derived from a source he did not create.
The court, in its judgment, appeared to align with Kcee’s argument when the court reiterated a key point in copyright law as follows:
“…the strength of every copyright action is the claim that the copyright owner must be the creator or originator or author of an original work of authorship presented in a tangible medium of expression and thus, the burden of proof lies on the Plaintiff because it is he who will fail if no evidence at all were given in the case…” the court also went further to interpret the meaning of the words “creator” and “originator”
In resolving the issue of originality, the court delved into the meanings of “creator” and “originator,” explaining that both terms are essentially synonymous when it stated that:
“…a careful examination of the definitions of “creator” and “originator presented above have shown that both words are essentially synonyms. In the context of their distinction, what emerges is that the two words means virtually the same thing. They are used in reference to an individual who is the first person to produce any work of art presented in a tangible medium of expression for the first time. In fact, his work must not consist of actual copying of the same work from another source. The implication of this proposition is that only a creator or an originator can claim to be the owner of a copyright”. (emphasis are mine).
In evaluating the evidence before the court, the court said that
“the evidence before the court shown that songs put together by him (plaintiff) are direct words from the Bible to show that he is not the creator or originator or owner of any or all of the above musical works. He admitted under cross-examination that songs can be written from the words of the Bible or liturgical books. The implication of this is that PW1 did not create the words of the songs.”
In its judgment, the court analyzed the plaintiff’s claims regarding the songs “Som too Chukwu,” “K’anyi jee Ulo Chukwu,” and “Otito diri Chineke” stating that all the witnesses confirmed that these phrases were common Igbo expressions that could be found both in and outside the Bible. While the plaintiff insisted that “Som too Chukwu” was not a biblical phrase, he explained that for him, it meant a personal invitation to his friends to join him in praising God, the court founded the phrase from the bible and referred to Psalm 34:3 from the English Bible, which translates similarly to the phrase “Som too Chukwu” as, “O magnify the Lord with me, and let us magnify His name together.“
This led the court to conclude that the plaintiff had indeed copied the phrase from the Bible. Therefore, the court held that the plaintiff could not claim copyright over “Som too Chukwu” because it was derived from the Holy Bible.
Additionally, when the album Cultural Praise Vol. 1, was played during the hearing, the court noted that the beats, sounds, notes, and rhythms of the defendant’s songs were distinctly different from those of the plaintiff’s work. Given these differences and the fact that the phrase “Som too Chukwu” was not original to the plaintiff, the court ultimately ruled in favour of the defendant, that the plaintiff was not entitled to any of his claims and subsequently awarded the sum of 1 million naira cost against the plaintiff.
After reading this judgment, two key questions linger in my mind:
What was gotten out of this case, justice or simply judgment?
The reality is that copyright infringement cases in Nigeria’s entertainment industry have been few and far between, leaving many of us eagerly awaiting court precedents that can shape the legal landscape and bring clarity to our entertainment justice system. But can cases like this truly inspire trust and hope in Nigeria’s copyright system?
The objectives of copyright law are clear and straightforward:
- To protect the rights of creators, ensuring that their intellectual efforts are justly rewarded and recognized;
- To provide reasonable limitations and exceptions, guaranteeing access to creative works;
- To facilitate Nigeria’s compliance with international copyright treaties and conventions.
The question is whether judgments like this one are moving us closer to fulfilling these objectives or merely offering technical interpretations that fail to uphold the spirit of copyright protection.
How does copyright infringement actually work in the music scene?
In this case, two elements formed the foundation of the final judgment,
- The concept of ‘originality’ and the
- The concept of ‘similarity’ in the underlying musical works for both “som too chukwu” by Sir Jude Nnam and “cultural praise Vol.1” by Kingsley Chinweike Okonkwo (a.k.a KCEE).
Generally, in any musical copyright infringement suit, the plaintiff must make and prove two factual claims, i.e a) he/she is the original owner of the copyright to which the claim is laid; and
b) that the defendant without authority copied the musical work. While this may seem straightforward, proving these two elements in court is not as simple or direct as it may look.
One thing we know is that copyright protection is automatic from the moment a work is created and it does not need formality to accrue. But how do you prove ownership of a work from the moment of creation, especially when two or more people might independently create something strikingly similar at the same time?
There’s also the belief that nothing is truly “new” under the sun. But with the analysis of the concept of originality in this case, does this mean that for a work to be considered original, it must be entirely new and novel to its creator?
These questions tap into deeper issues surrounding how we define originality, and whether every work must break new ground to qualify for copyright protection.
Sadly, Nigeria Copyright Act does not provide a clear definition of “originality,” nor does it specify who qualifies as the “originator” or “creator” of a work.
However, the Act does state in Section 28(1) that, unless there is an agreement to the contrary, copyright initially belongs to the “author.” Section 14(1) further outlines the rights of authors, giving them the authority to:
- Claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts referred to in Section 9, 10 and 11 of the Act.
- Object and seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such action would be prejudical to his honour or reputation.
But who exactly is considered the “author” of a musical work? While Section 108 of the Act provides definitions of an “author” for audiovisual works, collective works, photographic works, sound recordings, and broadcasts, it notably omits a definition for musical works. However, if we draw from the Act’s approach to other works which emphasized on the person responsible for the arrangements of the creative work, we can reasonably infer that the “author” of a musical work is the person responsible for the “arrangement of a musical composition”.
Understanding the interpretation of the concept of “authorship” and “originality is crucial when it comes to resolving disputes over copyright in musical copyright cases, where the originality and creative contributions to a work are often at the heart of the matter.
In the United States, registering a copyright with the U.S. Copyright Office is a prerequisite for filing a copyright infringement lawsuit, making it easier to prove ownership through this registration. However, in Nigeria, the process is different. While copyright is automatic upon creation, the lack of a registration requirement makes proving ownership more complex, particularly in creative industries like music.
For an author to hold copyright over a musical work, they must not only conceptualize the idea but also express it tangibly by fixing it in a medium—whether through writing, recording, or another method of capturing the work. Copyright protects the expression of the idea, not the idea itself. But how does one prove copyright infringement, especially in an industry where similar ideas and expressions can arise independently?
In the music industry, the challenge is that, direct evidence of copyright infringement is rare. Musicians may coincidentally produce similar melodies, lyrics, or rhythms without any intent to copy another’s work. As a result, proving infringement in this field can be especially complex.
In more developed countries, where copyright infringement cases in music are more frequent, courts have established two key factors to determine copyright infringement in musical works:
- Access: Did the defendant have access to the original copyrighted work before the alleged copying? This considers whether the defendant could reasonably have been exposed to the plaintiff’s work before making his work. The plaintiff must be able to show that this access to the previous work is reasonable enough to become a source of inspiration (consciously or not) for the new infringing work.
- Substantial Similarity: Are the two works in question substantially similar in expression? This examines the original elements of the work such as the melody, lyrics, structure, and other elements to determine if the defendant’s work closely mirrors the original in a way that constitutes infringement. One good way to establish musical infringement is to show a striking resemblance between the two works. A substantial similarity considers whether the plaintiff has adduced evidence before the court to show meaningful and objectively relatable similarities between the prior work and the new work. However, Figuring out the complicated musical parts of the songs in question is what makes it so hard to prove substantial similarities in music. For example, if a musician uses a common rhythm or chord progression, it might be hard to claim copyright for that song because these parts are often already public domain. The original parts of your song, though, can still be protected. These are the parts that make your work stand out. These could be the way the words are arranged, the melody, or a unique rhythm.
When courts evaluate whether a song has been infringed upon, they often look at several musicological factors. Here are a few key elements that courts have considered:
- The harmonic rhythm and chord progression to a song– One characteristic that can be used to describe a song is the timing of the chord changes in the progression. Basically, it’s the bedrock that the melody rests on.
In the case of (Griffin v. Sheeran, 17 Civ. 5221 (LLS) (S.D.N.Y. Apr. 5, 2023) https://casetext.com/case/griffin-v-sheeran-6 the plaintiff brought a case against Ed-sheeran, alleging that sheeran’s “thinking out loud” infringed on Marvin Gaye’s “Let’s get it on”, saying that the two songs shared the same chord progression as well as the same harmonic rhythm and that the combination of those elements was sufficient to establish substantial similarity. However, Sheeran successfully defended himself by establishing that the chord progression in question had been used in at least 13 songs and two guitar instruction books predating Marvin Gaye “let’s get it on” release. Recognizing that typical chord progression are part of the public domain, the court finally decided in Sheeran’s favor.
- Lyrics and theme– Lyrics are usually protected as literary works, but claiming ownership can become tricky when they include common phrases e.g “I love you,” or “What doesn’t kill me makes me stronger,” or when they draw from cultural or religious references, such as biblical quotes or folklore. Phrases from public domain sources, like religious texts or historical stories, are not usually protectable under copyright law, making it difficult to prove ownership to it.
- Melody, scale degrees and abstract music features– A song’s melody is frequently its most identifiable feature. Melodies consist of a series of notes grouped in a particular rhythm, and each note is connected with a specific “scale degree,” signifying its relationship to the key of the song. If two melodies are discovered to share these essential qualities, it might be argued that substantial resemblance exists.
These aspects are technical and require the skills of a musicologist or other professionals to successfully demonstrate whether a defendant’s work is substantially similar to protectable features of the Plaintiff’s original piece. Music is a very intricate art form, and courts must painstakingly scrutinize these aspects to identify whether infringement has truly taken place. This will help narrow the line between inspiration, public domain materials, and true uniqueness of a creative musical work.
In conclusion, the judgment in Sir Jude Nnam vs Five Star Music Ltd brings to light the important distinction between judgment and justice in copyright litigation cases.
The court’s ruling, while highlighting a key legal issue: (the copyright implications of works drawn from public domain sources), also illustrates a critical issue in the interpretation of originality under Nigerian copyright law.
Legally, works in the public domain, such as the Bible, cannot be copyrighted because they are open for unrestricted use. However, is it not possible that a creator’s derivative work hinged on a work in the public domain can still be copyrightable if they transform or add original expression to parts from the public domain?
The court reasoned that because the phrase came from a public domain source—the Bible—Sir Jude could not claim ownership. However, this raises a bigger question:
- Does copyright law allow for the protection of expressions based on cultural or religious texts if the creator adds a unique spin, interpretation, or creative value to them?
While the Bible itself is in the public domain, Sir Jude’s personal use of the phrase in his musical work may still have justified deeper consideration of originality beyond a literal interpretation of the source material.
Under his cross-examination (PW1) Sir Jude insisted that the phrase ‘Som Too Chukwu” to him meant a personal invitation to his friends to join him in praising God for what he has done for him.
Siding the defendant’s argument, the court apparently reduced the scope of copyright protection in this case to an overly rigid interpretation of originality. It overlooked the chance that the phrase, although from the Bible, had been uniquely constructed into a musical work that could carry an original creative identity more than just the mere words in the lyrics, but an original compositional element that may lie in the underlying musical work of the plaintiff created in 2001.
Copyright law, particularly in artistic industries like music, aims to protect not just the raw materials of expression but the distinctive ways in which artists use them. Unfortunately, in this case, the narrow view of originality as expressed in this case may have set a troubling precedent to music copyright litigation in Nigeria—one where creators taking inspiration from culture or religious materials are less likely to be protected.
This case raises an uncomfortable fact in Nigeria’s evolving copyright system. It forces us to face the question of whether justice I.e the true protection of creative efforts—was served, or whether we merely witnessed a technical judgment which may be devoid of the spirit of copyright law. Will this judgment encourage creators to be more cautious about what they draw from creative sources, or will it stifle creativity altogether by blurring the lines between inspiration and ownership?
For Nigeria’s entertainment industry, there is a need for more awareness of the copyright law and how the spirit works. Especially its music sector, cases like Sir Jude Nnam vs Five Star Music Ltd pose potential risks. If courts continue to stress judgment over justice, we might see fewer creators confident in claiming their rights, and more challenges in defending original works that incorporate shared cultural or religious elements. The final impact of cases like this could be a chilling effect on creativity, where creators are hesitant to use common but powerful concepts for fear that their creations will not be protected. As we move forward, I hope we, the legal soldiers of the creative industry are more intentional about cases like this and push forward on how the interpretation of copyright law can better serve the creative industry, ensuring that both justice and innovation are upheld in equal measure.
ABOUT THE AUTHOR
Olubunmi Abosede Apantaku is a seasoned legal practitioner with years of expertise in litigation, Intellectual property law, entertainment law, corporate compliance, and alternative dispute resolution. As Head of the Entertainment Law Practice Group at Pelican Crest Legal Practitioners, she manages a dedicated team focused on defending the rights of creatives, protecting and ensuring fair compensation and exploitation of their talents and creativity, as guaranteed by Intellectual property laws.
Driven by her passion to protect and inspire creatives, Olubunmi combines her substantial understanding with a commitment to fostering a legal climate where creativity thrives. Under her supervision, Pelican Crest ranks as Ibadan’s pioneering law office to focus in entertainment law leading in the city under 10 years.