Brain Jotter's usage of Gentleman Mike Ejeagha’s song: Is he guilty of copyright infringement?

In 1983, Nigerian iconic Igbo folk and highlife musician Gentleman Mike Ejeagha recorded the song ‘Ka Esi Le Onye Isi Oche’ off the album ‘Akuko N’egwu’.

The single made a sensational comeback 41 years later after it was used in a viral video that features catchy dance moves by skit maker Brain Jotter.

Since the video was posted on his Instagram on July 5, 2024, it has been viewed 29.1 million times with over 30,000 comments. On TikTok, it has been viewed 19.6 million times generating over 23,000 comments. The viral video has since sparked a trend on social media with thousands of users posting their videos with the song.

Amidst the renewed virality of the song, the 90-year-old musician and his work became a subject of interest for social media users and music aficionados. With goodwill pouring in, Brain Jotter offered Gentleman Mike ₦2 million.

For many, it was a generous sum. But critics have blasted the act by Brain Jotter as a rip-off, accusing him of copyright infringement of the Igbo folk musician as he didn't get his permission before using the song in his viral video.

Is Brain Jotter guilty of copyright infringement?

The argument that Brain Jotter infringed upon the copyright of Gentleman Mike Ejeagha’s work stems from the fact that in the first video posted on July 15, 2024, on Brain Jotter’s Instagram account, the skit maker synchronised the track ‘Ka Esi Le Onye Isi Oche’ into the video, instead of using the licensed version from the Instagram music library which he has since done in the subsequent videos

Section 36 of the Copyright Act 2022, prohibits anyone from, “Doing or causing anybody to do any act, which constitutes a violation of the exclusive right conferred on a copyrightable work.”

A song falls under the category of sound recordings which enjoy copyright protection under Sections 2 and 12 of the Act.

This follows that all copyrighted sound recordings, or in this case, songs, and the owners of such work, which in this case is Gentleman Mike Ejeagha are entitled to exclusive rights over them, and nobody can use such work without the permission of the owner.

However, Section 20 of the act provides for fair usage and situations where usage without the owner’s permission will not amount to a breach of copyright.

Such situations include private use, satire, non-commercial research, caricature, parody, and review or the reporting of current events.

According to the intellectual property lawyer, Olarenwaju Bello, it’s not possible to say in the absolute that Brain Jotter’s usage of Ejeagha’s ‘Ka Esi Le Onye Isi Oche,’ falls outside of the scope of fair usage.

“There’s a bit of actionable basis there. However, it’s the court that can determine whether Brain Jotter’s usage falls within the score of the exceptions of fair usage provided for in section 20,” he says.

“The owners are not pressing charges, but if they wanted, they could initiate a takedown and even sue for damages,” Bello adds on the legal steps that could have been taken by Ejeagha’s representatives in the occasion of a copyright breach.

As far as the subsequent videos posted by Brain Jotter on his social media pages where he used the song ‘Ka Esi Le Onye Isi Oche’ from the Instagram music library, this doesn’t constitute a breach of copyright, Bello says.

"In this case, the legal process of using sound recordings in skits and online content is to first ascertain whether such recording is already licensed to the social media platform and free for use of the content creator or requires further licensing. In this case, Premier Records Ltd has licensed the song in question to TikTok through its DSP in what is regarded as a blanket license. The implication is that Brain Jotter is not liable for copyright infringement on the song because this sound recording is licensed and is used within the spirit of the provisions of the Copyright Act 2022," he explains.

Whether Brain Jotter is liable for copyright infringement is for the court to decide if Ejeagha decided to sue.

It is also worth noting that the nature of the situation isn’t such that will likely resort to legal actions as Brain Jotter recently shared a heartwarming video of his visit to the home of Gentleman Mike Ejeagha in Enugu state.

The goodwill the 90-year-old musician has enjoyed since the video went viral and the potential income he stands to enjoy from increased streaming traffic also suggest that a case of copyright infringement might be a lost cause.

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While Brain Jotter's case is unlikely to go to court, it offers a reminder of the recurring issue of copyright infringement in Nigeria's creative and entertainment sector, especially in the music industry where issues of sampling without permission persist.