that the concept of entertainment law is a conglomeration of other laws and regulations which are relevant to activities in the entertainment industry.
The field of entertainment law or simply, activities in the Nigerian
entertainment industry are regulated by enactments from various areas of law
including but not limited to Intellectual Property Law, Tax Laws, Contract Law,
Antitrust, Labour Law, Corporate law and many more. Entertainment law is the
entire collective mass of legal framework devoted to entertainment industry.[1] At
its basic level, it involves the representation of artists and producers, the
negotiations of contract and the protection of intellectual property rights in
the creative and entrepreneurial endeavours of businesses and individuals that
are into film, music, sport, broadcast media, theatre, publishing, and other
creative expressions.[2]
The most relevant law that defines Nigeria’s entertainment law is Intellectual Property law. Entertainment law has in fact being described as indistinguishable from intellectual property law.[3] Thus, a prospective entertainment law practitioner or enthusiast would prepare to deal with the study of Intellectual Property law. It doesn't take Einstein to understand the reason behind this- the entertainment business is a business of creatives while intellectual property law protects creatives and their creations. One can therefore simply say, both intellectual property law and entertainment share the same laws just like two mother dogs nurturing the same puppies.
We shall examine the various intellectual property law enactments as the
foundation and legal framework for entertainment law thus:[4]
1. The Copyright Act.
The Copyright Act protects and regulates rights of owners and authors
of creative works such as literary, musical, artistic, sound recording,
broadcast and film work. Copyright itself refer to the set of exclusive rights
enjoyable by authors or owners of eligible works under the law.
The Copyright Act create automatic protection for
major works created by authors in the entertainment industry, ranging from
movie scripts (literary works), to cinematograph films, musical works, sound
recordings, and broadcasts.[5] It
further provides for civil and criminal remedies for rights infringement and
how artistes may license or sell their rights for any eligible work of
entertainment produced. It also addresses the unique needs of dance, theatre
and other performing arts. Hence, a creator of a choreography may claim a
copyright for that choreography, once it has been fixed in a tangible form,
such as on a video recording. The choreography then may only be used with the
permission of the copyright holder.[6]
Creation of derivative works in the entertainment industry is also
provided for under the Act. By this, the copyright owner or author of a work,
for instance, a novel can control the adaptation of his novel into movies,
audio,games or television series. The right of a performer also known as
neigbouring right is as well provided under the Act.
The development of a right such as the copyright in the entertainment
and creative industry is founded on the need to strike a balance between the
protection, non-depravity of creatives for rewards of their creativity and the
non-depravity of the public of access to arts and creative works.Thus Article
27 of the United Nations Declaration of Human Rights guarantees both rights
thus:Everyone has a right to the protection of the moral and material
interests resulting from scientific, literary or artistic production of which
he is the author… Everyone has the right to freely participate in the cultural
life of the community, to enjoy the arts and to share in scientific advancement
and its benefits.
Notably, copyright matters are placed under the exclusive legislative
list of the 1999 Constitution of the Federal Republic of Nigeria(as amended).
Thus, only the National Assembly can enact laws regulating copyright. Also,
copyright matters come under the exclusive jurisdiction of the Federal High
Court.[7] By
historical development, the English Copyright Act 1911 was the first applicable
copyright legislation in Nigeria, which was made applicable to Nigeria by the
colonial powers of Great Britain. The Act, was replaced by the Copyright Act
1970 which, by reason of its inadequacies was replaced with the Copyright Act
1988 which is the current copyright legislation in Nigeria but with occasional
amendments. However, the Copyright Act 1988 is soon to be replaced by a new
Copyright law upon the passage of the Copyright Bill 2022 by the National
Assembly which currently awaits presidential assent for take off.The new
Copyright enactment is coming in face of the long term condemnation of the
Copyright Act 1988 as been mundane and persistent agitation for a new copyright
regime to enhance the competitiveness of its creative industries in a digital
and knowledge-based global economy.
2. Trademarks Act
A trademark refers to a mark used or proposed to be
used in relation to goods for the purpose of indicating or so as to indicate, a
connection in the course of trade between the goods and some person having the
right either as proprietor or as a registered user of the mark.[8]
Generally, registering trademark helps to designate the origin of a product or
service, to indicate the standard of quality and to distinguish a trade or
prevent consumers from confusion.
The Trademarks Act which regulates the registration of trademarks is
of significance in Entertainment law
because the registration and use of trademark is a germane aspect of dealings
and activities in the entertainment industry.
The importance of trademarks to entertainment in Nigeria is largely
present in the music and film sectors of the entertainment business. Just like
any other manufacturing industry, a song or movie is a product of efforts of
different skilled individuals and creatives (from writing stage to production
and distribution), pooled together to produce the entertainment product- a film
or song. These individuals exert creative efforts in their various roles in
manufacturing the final product and in the process create quality and enjoy
fame, goodwill for their brands and names, thus, it becomes expedient that they
register their names/marks to prevent
others from using names that are so similar to theirs as to cause confusion as
to exactly who is delivering the particular quality of product or service. For instance, ThankGod Omori better known by his stage moniker as TG
Omori -a cinematographer and music director broke into limelight with the trend
of music-videos directed and his unique style and quality. With the recent
prominence of the brand TG Omori it would be unthinkable that a name with such
goodwill has not been trademarked.
Therefore, many entertainment entities register their
names under the Act thereby claiming the exclusive right to use their names.[9] Entertainment company names,
record label names, performers' monikers, and, performers' legal names, can be
protected under the Nigerian Trademark Act. Interestingly, once an entity
registers a trademark, such mark or name cannot be used by another entity to
register a similar trademark or a new company under the extant company law
without the consent of the original trademark proprietor.
Importantly, in Nigeria, the Trade Marks Act
of 1965 is the law which regulates the registration of trademarks, while the
Trademark, Patents and Design Registry under the Commercial Department of the
Ministry of Trade and Investment is the authority responsible for the
registration of trademarks in Nigeria. The Act
defines what constitutes a registrable trademark. It excludes generic marks
from the list of registrable marks.
3. The Patent and Designs Act
The Patent and Designs Act 1990 grants patent right to inventors or owners
of inventions that are patentable. The important role of the patent in the
entertainment industry includes the need to protect and to grant right of
monopoly on creators of technological inventions which are applied for
industrial use in the entertainment industry. For instance, the invention of
modern audio systems, video cameras, drones, 3D projection, and digital
streaming platforms. Thus, it is the significance of patents in the
entertainment industry that has made the movie industry evolve from white and
black films to technicolour movies and further to a world of animation which
alone is a source of huge investment in the entertainment industry.
Historically, Thomas Edison invented Kinetoscope which showed motion
pictures and was patented in 1897 as U.S. Patent No. 589.168. Thomas Edison
would soon form the Motion Picture Patents Company in 1908 in order to enjoy
monopoly on motion pictures and make money from his other inventions like
cameras, projectors, film stock. Also, in the year 2018, Sony applied for
patent protection for the animation process and technologies used to produce
Spider-Verse, claiming that the computer Generated Animation is a uniquely
distinct invention on its own.
In Nigeria, under the Patents and Designs Act, two categories of
invention are capable of the grant of patent to wit: a new invention and an
improved patented invention. Thus, a discovery
without anything further cannot amount to a patentable invention. An inventor
must do something more to make the product or process invention patentable
under the Act.
The Patents and Designs Act provides that every patent application
shall be made to the Registrar of patent and design and according to the Patent
Rules.
Conclusion
There are other relevant laws in the Nigerian entertainment industry,
most of which serve regulatory purpose such as the National Film and Video
Censors Board Act, Nigeria Copyright Commission Act, National Council for Arts
and Culture Act e.t.c. which are intentionally exempted from the scope of this
work in an attempt to distinguish the legal framework from the regulatory
framework.
However, the already examined Intellectual Property statutes constitute
the backbone of rights in the entertainment industry. These laws carry great
economic significance and constitute the bedrock of the entertainment industry
in Nigeria, at least until a single codified Entertainment Law legislation is
enacted in Nigeria.
[1]
Michael Dugeri, “Entertainment Law in Nigeria; Emerging Trends, Sources,
Practice, and Precedents” Adcore Consulting 2021, P.8.
[2] Ibid
[3] Ibid
[4]
Kelvin Isibor considered these laws as
the fons et origo of entertainment
law in Nigeria. Other legislations are ancillary to activities in the
entertainment industry. See Kelvin Isibor, ENTERTAINMENT
LAW IN NIGERIA: A TORPID STEP IN THE RIGHT DIRECTION, University
of Benin, 2019.
[5] Ibid
[6] Op.
Cit. 1
[7]
Section 251(f) of the 1999 Constitution of the Federal Republic of Nigeria(as amended)
[8]
Section 67 Trademarks Act 1965
[9] Op
cit 4
