On IP Matters this week, let’s take a closer look at Falz’s now controversial song, ‘This is Nigeria’. Apparently inspired by ‘This is America’, a song by American rapper Childish Gambino, Falz released ‘This is Nigeria’ a few weeks after ‘This is America’ was released 5 May 2018. Owing to the similarities both songs have, many Nigerians have accused Falz of ‘stealing’ Childish Gambino’s intellectual property. But many other Nigerians have come up to defend Falz’s act, describing ‘This is Nigeria’ as a ‘parody’ or ‘satire’, thus amounting to a defence under copyright law. Does Falz’s ‘This is Nigeria’ infringe on Childish Gambino’s copyright in ‘This is America’?

Childish Gambino’s ‘This is America’ is a satire, criticizing the high rate of violence in the American society.

‘This is America’ was released 5 May 2018 in digital-download format. The music video for the song was released on YouTube simultaneously with Childish Gambino’s performance of the song on Saturday Night Live. In 24 hours, the music video received 12.9 million views. It now has over 200 million views. By 15 May, the song was playing on radio in the US. ‘This is America’ debuted at number one on the US Billboard Hot 100. The song is reported to be Childish Gambino’s first number one and top ten single in the US.

Childish Gambino is the stage name of Donald Glover Jr. He is an American actor, comedian, DJ, director, record producer, singer, songwriter, rapper, and writer.

Inspired by ‘This is America’, Falz releases ‘This is Nigeria’, a social commentary on the rate of crime, corruption, and violence in Nigeria.

‘This is Nigeria’ was released 25 May 2018. 3:42 minutes long, the music video was produced by Wande Thomas and directed by Iyobosa ‘Geezy’ Rohoboth. After ‘This is Nigeria’ was released in digital format, it went viral on the Internet. By the first week of June 2018, the song became the second hottest Nigerian song in May 2018 after Davido’s song, ‘Assurance’. This is based on online downloads, streaming on iTunes, Spotify, Youtube, radio airplay, etc.

Falz, also called ‘Falz the Bahd Guy’, is the stage name of Folarin Falana, son of Nigeria’s senior advocate, Femi Falana. Falz is a Nigerian actor, rapper, and songwriter. At the 2015 Nigeria Entertainment Awards, he was nominated in the ‘Best Rap Act of The Year’ and ‘Best New Act to Watch’ categories at the same event. He owns Bahd Guys Records.

Use of an author’s work without permission amounts to copyright infringement. But if the new work is a parody, pastiche, or caricature, it is a defence against copyright infringement.

According to Britannica,  ‘‘parody’, in literature, [is] an imitation of the style and manner of a particular writer or school of writers. Parody is typically negative in intent: it calls attention to a writer’s perceived weaknesses or a school’s overused conventions and seeks to ridicule them. Parody can, however, serve a constructive purpose, or it can be an expression of admiration. It may also simply be a comic exercise. The word parody is derived from the Greek parōidía, “a song sung alongside another.”’

By imitating an original style, a parody is essentially a mimicry. It mimics a concept, idea, person, or style for comical effects. Parody mocks and ridicules the original work for pure entertainment. It is art for fun’s sake, but can also be used for satirical purposes.

Parody, pastiche, and caricature create a new work of art by imitation. This is why paragraph (b) of the Second Schedule to the Nigerian Copyright Act removes parody, pastiche, and caricature from the control of a copyright owner. Any person who creates a parody, pastiche, or caricature is protected against the copyright owner of the original work or personality/image (in the case of a caricature). This is effectively an exception to copyright infringement.

Falz’s ‘This is Nigeria’ is not a parody.

As already explained above, parody focuses on the style of an original work, not a societal issue or social ills. Falz’s song, ‘This is Nigeria’ is not a mockery of Gambino’s style, but a serious commentary on the Nigerian society.

Because a parody necessarily has to imitate the original work, copyright law excuses parody from the requirement of originality. This is reasonable. An imitation of a work of art can hardly avoid copying a substantial part of that work—if not in content, in style—otherwise it won’t qualify as a parody. And since a parody mocks an original work, it is targeted at the author or creator of the original work, not the society.

Falz’s ‘This is Nigeria’ is not an imitation of Childish Gambino’s ‘This is America’ for the purpose of mocking the latter’s appearance, mannerisms, or style, but a serious social commentary on Nigeria.

Therefore, ‘This is Nigeria’ is not a parody.

‘This is Nigeria’ does not enjoy the protection parody enjoys because it is not an imitation that creates a parody, but an adaptation that creates a satire. Falz is therefore required to obtain Childish Gambino’s permission to produce or release ‘This is Nigeria’.

According to the Britannica, “[w]herever wit is employed to expose something foolish or vicious to criticism, there satire exists, whether it be in song or sermon, in painting or political debate, on television or in the movies. In this sense satire is everywhere.”

A satire is not synonymous with a parody and does not enjoy the legal defence that parody enjoys. Using ‘parody’ and satire’ as synonyms—as a number of writers have done in their opinions on the copyright status of ‘This is Nigeria’—is incorrect. A parody can be satirical. But not all parodies are satires and not all satires are parodies. Both are different.

As defined in Britannica, a ‘satire’ is an “artistic form, chiefly literary and dramatic, in which human or individual vices, follies, abuses, or shortcomings are held up to censure by means of ridicule, derision, burlesque, irony, parody, caricature, or other methods, sometimes with an intent to inspire social reform.”

‘This is Nigeria’ is an adaptation of Childish Gambino’s ‘This is America’ for the purpose of delivering social commentary, engaging in public criticism, or exposing social ills about the Nigerian society. This makes it a serious work of satire.

Satire does not enjoy the defence parody, pastiche, and caricature, with the other exceptions under the Nigerian Copyright Act, enjoy under copyright law. This is because satire does not require the author or creator of a new work to borrow from, copy from, or imitate an existing work of art. Satire, unlike parody, does not copy the appearance, mannerisms, or style of a work to make a point about that work. Satire attacks follies, shortcomings, and vices in real life. Parody attacks the style of a fictional work.

Therefore, it would be wrong to read ‘satire’ into ‘parody’—the word used in Nigerian Copyright Act.

Falz appreciates the distinction between a parody and a satire, but the artist does not appear to understand the legal implication of this distinction from a copyright perspective.

When in a recent interview on BBC Africa, BBC Africa’s Usifo Umozokpea asked Falz if Gambino had gotten in touch with him or Falz got permission from Gambino, below was Falz’s response:

“He hasn’t been in touch. No … And I didn’t have to get in touch with him for permission. [This is Nigeria] was just a cover. People do covers all the time. And even before mine, there were a million and one people that had already done covers …mostly parodies … You know people, making fun of the original or trying to do their own or be funny with it. And … maybe that’s why this one caught a bit of attention because everyone must have expected something funny from me as well but I just decided to do something very serious.” [Emphasis mine]

Clearly, Falz appreciates the distinction between a parody and a satire. But what the artist doesn’t seem to realize is that while copyright law accepts parody as a defence to copyright infringement, it does not excuse satire.

Childish Gambino has been silent. He either has no problems with Falz’s adaptation of his work or he also doesn’t fully appreciate the legal implication of the distinction between a parody and satire under copyright law.

But for the purpose of putting this IP matter in the right perspective, the point must be clear that adaptation of a copyrighted work requires the original author’s permission.

Apart from the points above, the similar features below show that ‘This is Nigeria’ is not a parody, but an adaptation of ‘This is America’.

In ‘This is America’, Childish Gambino’s lyrics in the song are social commentaries on the high rate of violence in the US. Using chaotic scenes in the music video, the song wittingly brings attention to being black in the US, gun violence, and police brutality in the country. In ‘This is Nigeria’, Falz finely adapts ‘This is America’ to a Nigerian audience by taking on issues of violence, crime, corruption, and exploitation in Nigeria.

In ‘This is America’’s 3:45 minutes video, Childish Gambino is seen dancing through a warehouse. The camera follows Childish Gambino, showing his various encounters in a series of violent scenes. Some of the violent scenes in ‘This is America’ include Childish Gambino pulling the trigger of his handgun to shoot a man from the back of his head and using an AK-47 to spread bullets at a church choir.  In ‘This is Nigeria’, the music video starts with Falz—also shirtless like Gambino in ‘This is America’ video—listening to a radio program. In the background, we see two young men in the street throwing punches at each other. As the camera follows Falz around, we see various scenes, reinforcing Falz’s message. In one of the scenes, a man in Fulani attire playing a local instrument suddenly picks up a machete and attempts to behead a helpless man. Soon after, “Fulani herdsmen” are seen attacking people in the open.

In Childish Gambino’s song, he is with a group of young dancers, performing the South African ‘Gwara Gwara’ and ‘Shoot’ popularized by BlocBoy JB. Similarly, behind Falz in most parts of ‘This is Nigeria’ video are energetic Hijab-wearing female dancers. This reminds viewers about the Chibok or Dapchi girls recently abducted by Boko Haram insurgents in the country. The dancers are seen performing the ‘Shaku Shaku’ dance, a trending street dance in Nigeria.

This is an adaptation.

A copyright holder has the exclusive right to adapt his or her own work. Any person who adapts a copyrighted work without authorial permission is liable to copyright infringement.

Under both US and Nigeria copyright laws, Childish Gambino has the exclusive right to make adaptations of his work, ‘This is America’.

In the US where Childish Gambino is based, adaptations are derivative works. Section 101 of Title 17 of the United States Code which governs copyright in that country defines a ‘derivative work’ as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.” [Emphasis mine]

Under Nigeria’s copyright law, the position is not different. Section 51 of the Nigerian Copyright Act defines ‘adaptation’ to mean “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”. [Emphasis mine]

Section 6(1)(viii) of the Nigerian Copyright Act gives the author of a work exclusive right to “make any adaptation of the work”.

Based on the position of law above, without Childish Gambino’s permission, Falz has infringed on the former’s copyright in ‘This is America’.

Four Lessons You Need to Understand about Copyright in Literary, Musical Work, or Artistic Works

1. Copyright in a work confers exclusive rights on the author, including right to make adaptations of the work: A derivative work is an adaptation of that work. It is immaterial that the new work is still within the same genre as the original work. Here, Falz has adapted a satirical song in the US to another satirical song in Nigeria. This is still an adaptation. Copyright law applies.

2. IP protection is territorial, but a national of any country that is signatory to the Berne Convention for the Protection of Literary and Artistic Works enjoy copyright protection in other signatory countries. Also when a non-national produces a work in a signatory country, that non-national’s work also enjoys protection. Nigeria is a signatory to the Berne Convention. So also is the US. So Childish Gambino’s copyright in ‘This is America’, first published in the US, extends to Nigeria. Nigeria is also happy to protect works that are first published in a country by virtue of any international agreement or treaty Nigeria is party to.

3. Apart from parody, pastiche, caricature, there are other exceptions to copyright infringement recognized under the Second Schedule to the Nigerian Copyright Act. One of these exceptions is fair dealing (in Nigeria and in the UK) or fair use (in the US). Fair dealing includes use of a copyrighted work for criticism, current-event reporting, private use, research, and reviews, as long as title of the original work and original author are acknowledged.

4. Until ‘This is Nigeria’ is seen for what it is—an adaptation of ‘This is America’—trying to apply the principle of substantial copying in order to determine copyright infringement will be foggy. Whether we choose to look at this IP matter from the idea/expression dichotomy angle—as many Nigerians have been doing—or from a quanlity vs quantity angle, all I see is fog. Understanding that Falz’s ‘This is Nigeria’ is an adaptation immediately removes the fog. An adaptation greatly relies on the idea of an original work just as it relies on the expression of that idea, especially style.

Three Lessons You Should Take Away from ‘This is America’ vs ‘This is Nigeria’ controversy

1. As an artist, author, or creator, never make assumptions when it comes to IP. You are in a copyright-intensive industry. Before you produce or release any work, always double-check. In fact, it’s best to have done your homework even before starting any project. This doesn’t only save you energy, money, and time, but also ensures you are not putting your brand or reputation at risk. Keep a good IP lawyer close.

2. Imbibe the practice of including credits in your work, particularly when you have not gotten in touch with the original author: When playing fair as Falz intended with ‘This is Nigeria’, make effort to acknowledge the original author right in the work. For example, below the title of the work. This demonstrates good faith. If you wait till you are interviewed by the press about authorial attribution or credit, the affected author may be dissatisfied with that.

3. As an artist, always avoid the pressure or temptation to justify the artistic contents of your work, even if MURIC (Muslim Rights Concern) is breathing down your neck. An artist creates art. The audience appreciates it however way they interpret it. An artist should not waste creative time explaining his or her art. If you must, let your choreographers, directors, lyricists, and other professionals you worked with work closely with PR to communicate this to the public. If PR also needs help, then you may ring your lawyers! Never be pushed to testifying on the Internet. Just turn the heat on with another hit. Sing.

IP Matters, it’s never too early because IP matters to business and development, any day.