By James Abati

You may recall that sometime in 2017, G-Worldwide, Kizz Daniel’s (fka Kiss Daniel) former record label slammed a lawsuit against the artiste for allegedly breaching a 7-year recording and management contract deal. G-Worldwide was the label under which Kizz Daniel recorded hit songs such as “Woju”, “Raba”, “Woju (Remix)” featuring Davido and Tiwa Savage, “Laye”, “Good Time” and in fact, his debut album, “New Era”. His run with the label was a match made in heaven as they churned out several hit singles back to back. However, this relationship faced a strain, which we intend to digest below with recommendations on how upcoming artistes can avoid certain contractual disputes that may have far reaching effects on their career.

Background of the dispute

G-Worldwide (“GWW”) accused Kizz Daniel of infringing on their intellectual property by using the stage name “Kiss Daniel” and performing songs from his “New Era” and “Evolution” albums, which they claimed were produced under the contract. The label therefore sought an injunction restraining Kizz Daniel from performing the copyrighted songs recorded under the label and using the stage name “Kiss Daniel” which GWW had trademarked. Also, they claimed damages for breach of contract, contract exit fees, infringement of intellectual property rights and other incurred costs amounting to about N500,000,000.00 (Five Hundred Million Naira).

Kizz Daniel’s alleged offense was that he had illegally formed his own independent label, ‘FLY BOI I.N.C”, appointed a new talent manager, negotiated and entered into performance deals and used the stage name ‘Kiss Daniel’ without the consent and permission of GWW whilst still under contract with GWW.

GWW’s position was that the 7-year contract signed by Kiss Daniel was yet to lapse and there was never a time when the contract was reviewed to enable him terminate the agreement prior to the expiration of the contractual term.

Kizz Daniel in his defence, denied the allegations and stated that he had properly terminated the contractual agreement and the label was attempting to exploit him. He also claimed that the stage name “Kiss Daniel” was not the intellectual property of the record label as he had been using the name prior to the signing of his contractual agreement with GWW.

Legal Issues

The issues for determination before the court include:

1.Whether Kiss Daniel is not in breach of the terms of his contract with GWW by using the trade marked name “Kiss” without the consent and permission of GWW?

2.Whether Kiss Daniel is not in breach of the terms of his contract with GWW by negotiating and entering into performance deals without the consent and permission of GWW?

3.Whether Kiss Daniel is not in beach of the terms of his contract with GWW by performing copyrighted songs in contravention of the agreement with GWW?

4.Whether Kiss Daniel is not in breach of the contractual terms by terminating the agreement without a review of the terms of the agreement?

The first issue to be considered is Pacta sunt servanda – sanctity of contracts; the principle that denotes that agreements must be kept / upheld. It is trite that parties who willingly enter into an agreement must respect the terms of the contracts and abide by its provisions, both the consideration / accruing benefits and the duties / obligations. In the entertainment industry, this principle means that contracts involving artists, production companies, distributors, and other parties are generally upheld by the courts. Hence, a party that willing entered into an agreement cannot decide to deviate from its terms without financial consequences by way of costs and damages.

To lay some foundation, there are certain rules of drafting that ought to be followed in every contract, these include: clarity and precision, certainty of parties, certainty of duration, certainty of terms (of the contract), governing law and dispute resolution etcetera. These are drafting principles that must be followed to avoid ambiguity and to ensure that the intention of the parties is adequately conveyed in the legal document.

Now to the dispute, and this analysis is to an extent a hypothetical analysis of the legal issues as the contract between Kiss Daniel and GWW was not and is not available in the public domain, possibly due to the confidentiality provisions in the agreement; all the available information on the case are by way of public dissemination by the Nigerian media.

Firstly, to the issue of the trade marked name “Kiss”, we should be aware that: “a trademark is a distinctive sign, design, or expression that legally identifies and distinguishes the products or services of one party from those of others. It serves as a form of intellectual property, protecting a brand’s identity and helping consumers easily recognize and associate a product with its source.” As a record label, GWW took the active step of registering “Kiss” as a trademark and therefore owns the right to the intellectual property. It was however an issue for judicial determination being a question of whether Kizz Daniel who had been using the name before signing to the label but without taking actives step to protect the brand identity had a more established right than GWW who did what he failed to do, in a legally binding manner. The common law defence of prior use – if the case had been brought to a lawful conclusion, would have been weighed against the equitable right of registration of the trademark bestowed upon GWW. There is yet to be a settled case law on this issue, however, while common law rights based on prior use are important, registration offers a more comprehensive and robust legal framework for trademark protection. Hence, use of the name “Kiss” became permissible only under the consent, permission or license of GWW, the owner of the intellectual property.

Secondly, there is an allegation that Kizz Daniel and his management negotiated and entered into performance deals without the consent and permission of GWW. If the contract that existed between the two parties stipulated that performance agreements required the consent or permission of the label or if it granted the label the sole right to negotiate and enter into such deals on behalf of Kizz Daniel, then a breach existed. However, if the contract was silent on this issue and solely limited to production, recording, distribution, releases, promotion and profit sharing, then Kizz Daniel acted well within his right to negotiate and enter into performance deals independent of the label. This is a common occurrence in the entertainment industry depending on the terms of the contract between artiste and label; management agreements are known to exist independent of record label deals. Artiste managers under the terms of their own contract are usually charged with the responsibility of legal and financial administration / management. Thus performance agreements falling under this overhead may sometimes be within their purview, depending of the agreement(s) entered into by the artiste.

Thirdly, on the issue of performing copyrighted songs, this is a very dicey issue and we will dissect it with statutory provisions. Section 2(1) of the Copyright Act in Nigeria stipulates that:

“Subject to this Act, the following works shall be eligible for copyright

• literary works ;
• musical works ;
• artistic works ;
• audiovisual works ;
• sound recordings ; and
• broadcasts.”

Section 4 of the same act states that: “Eligibility for copyright under this Act shall not require any formality.” Section 5 goes further to confer copyright by virtue of nationality (Citizenship of Nigeria) or place of habitual residence (Nigeria) while Section 6 confers copyright by virtue of country of origin, that is, a musical work first published in Nigeria.

With the provisions of the Copyright Act, it is evident that the copyright of musical works recorded or released by Kiss Daniel, as he then was, belongs to him by virtue of his nationality, place of habitual residence and country of original of his musical works. The salient question that requires a judicial determination is thus: whether the provisions of the Copyright Act can be derogated from by way of contractual agreement. The answer to this is yes, copyright can be transferred or conferred by way of an assignment or license. In the instance of Kizz Daniel, if the record label agreement with GWW included a copyright clause assigning the copyright of musical works recorded and published under the label, then such musical works belong to the label. This is the standard all across the world in entertainment related agreements and parties are bound by it. On this issue, GWW had an upper hand.

Finally, on the issue of terminating the record label agreement without reviewing the terms of the contract, the issue to be considered is whether the contract contained a termination clause. A termination clause is an essential part of a contract; it can either be as of right (without cause) or with cause, based on an alleged infringement. A contractual agreement without a termination clause is inherently flawed and will not be upheld during adjudication of legal disputes. The reason is this; an unwilling party cannot be bound by an agreement that they no longer wish to enforce. A contract without a termination clause can be vitiated by relying on the principle of unfair contractual terms.

For emphasis, unfair contract terms are clauses in a contract that are considered to be particularly harsh, one-sided, or unconscionable, and which unfairly disadvantage one party. These terms can limit the rights and obligations of one party while excessively favoring the other. A contract stipulating that the agreement cannot be terminated without meeting certain conditions or by paying exorbitant / excessive exit fees may generally be considered to be unfair, particularly in light of allegations of breaches by the terminating party. Based on the foregoing, it is yet to be seen whether the contract between Kizz Daniel and GWW was unfair but for educational purposes, this is the position of the law.

Recommendation

Entertainers, be it, musical artistes, actors, sports men and women, producers, directors or film makers, need to be conscious of the agreements they enter into and there is only one way to safeguard their interest in this regard, brief a lawyer and not just any lawyer, an entertainment lawyer whose area of specialization is entertainment.

In the initial stages, entertainers are thrilled by the prospect of signing a new deal, making money, entering the spotlight and achieving their dreams, that they do not foresee the inherent dangers in signing an agreement that is flawed ab initio. The cost of getting a lawyer to review the agreement and safeguard their interest is minute compared to the legal costs associated with briefing a lawyer in the event of a contractual dispute.

For instance, in the case of Kizz Daniel, he had to procure the services of a Senior Advocate of Nigeria, his learned silk, Dr. Olisa Agbakoba (SAN) to represent his interest in the lawsuit. The attendant cost associated with briefing a SAN is relatively high when compared to briefing an entertainment lawyer to review the contractual agreement governing an entertainment deal. An average of N30,000,000 (Thirty Million Naira) to N60,000,000 (Sixty Million Naira) would have been expended on defending the suit, this could have been avoided for a suit that was eventually resolved by changing “Kiss” Daniel’s stage name to “Kizz” Daniel.

Hopefully, lessons have been learnt and young talents looking to venture into the entertainment world would learn to call a lawyer, or better still, call Saul.

 James Abati, LL.B, LL.M, M.Sc, LPC, BL, is a lawyer and businessman resident in Lagos, 

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