“This Song is not Currently Available”: The Tricky Subject of Music Publishing and Licensing

Source: @carterefe_ (Twitter)

Eminem’s Mockingbird is starting to play from Bang & Olufsen speakers. After four minutes and 5 seconds, Stan, the next in the playlist, will crossfade to create a faux DJ effect. But the 2:40 mark is important here. Slim Shady speaks about how Dr. Dre gets his CD, and things are about to take a sharp, positive turn. 

You see, in 1998, Dr. Dre signed Eminem to Aftermath Records in what can best be described as a launch to the rapper’s highly successful career. Without a doubt, everyone needs that launch from someone bigger. And Afrobeats in recent years has been a terrific example of this interesting practice. 

In 2019, Olamide gave us Fireboy, and this year, Asake’s failing musical career was resuscitated when he was signed to the YBNL record label. Mayorkun would have remained a marketer running around banks in Broad Street without a timely Davido intervention. 

Don Jazzy, arguably the best in the artist and repertoire game, has launched some of the major youngsters in Nigeria’s music industry in the past five years. Rema, Ayra Starr, Boy Spyce, Ladipoe, Crayon… the list of examples to support this phenomenon is endless. 

Stan comes up now, and Eminem addresses another issue that is quite a burning topic in Afrobeats – stan culture. The effects are immense, from daily Twitter trolling to amusing dedicated artiste streaming groups and charts-watching. But there are few and far between positives. Like Machala, a recent release from “Wizkid FC” fans Carterefe and Berri Tiga. 

In an unprecedented turn of events, the song, composed as a tribute to Wizkid, topped the Apple Top 100 songs in Nigeria chart. For what it’s worth, Machala was a decent recording and racked up about a million and a half listens on Spotify up until it was taken down abruptly. 

This is not the first time we’ve seen fire songs taken down. Early this year, BNXN (fka Buju) had his refix of Blaq Diamond’s Italy taken off major streaming platforms. Similarly, in 2021, Goya Menor & Nektunez’s Amapiano remix of Era’s classic Ameno was also pulled off Spotify and Apple Music. 

Arguably, the latter songs were due to copyright concerns, particularly issues bordering on licensing and royalties. But with Carterefe’s hit debut song, the lines are quite blurry.  A few of us believe the removal was in response to [a rumour that] Wizkid had trademarked the word “Machala”. Others claim that there’s an ownership tussle between Carterefe and Berri Tiga while stans of other artistes believe that Wizkid, unlike other senior Afrobeats stars, is stifling the new generation.

The lines may be extra blurry – a fact to be thankful for – but we can still speak extensively on the possible legal principles at play. 

Firstly, in BNXN and Goya Menor’s cases, there was no debate. They had made remixes of other people’s songs without seeking permission or obtaining appropriate licenses. It was only right that the songs be taken down pending the time that the right actions were taken. 

Sample, remix, cover, interpolation. They all tend to get confusing. Here’s how we draw the line. A sample is a copy of a sound recording infused into another standalone musical composition. On the other hand, a remix uses the entire sound recording and musical composition to create a new song. 

For instance, a remix maintains the beat, melody, score and several parts of the lyrics. Most remixes just take out one verse and replace it with another, especially that of a guest artist. You can juxtapose Rema’s Calm Down and the remix with Selena Gomez as a good example. 

Moving forward, a cover is a new recording of an already existing song by a different artiste. The musical arrangement is altered, lyrics may or may not be altered but the song’s structure is always the same. On the flip side, an interpolation is a re-recording of the musical composition of an existing song. 

Now that all of that is out of the way, let’s dive into core legal issues. It’s a no-brainer that when you’re about to use something that is not yours, you take permission. Many of us learnt this life principle when we were yet kids. 

Surprise, the rule doesn’t change throughout the circle of life. So, whenever an artiste wishes to publish a remix, cover, sample or interpolation of a song that is not theirs, they need to take permission. This may be from the artiste themselves or the record label or even songwriters, depending on which part of the song they are using. 

If the original owner agrees to let you release the remix, they essentially own the copyright of both songs. Yes, they do. And if they are like Toni Braxton, they’ll take 60% of the entire earnings from the song. But typically, the royalties are split between you, the original artist and whoever is the music publisher. 

Publishing a bootlegged cover or remix for commercial gain is copyright infringement and CMOs may instruct streaming platforms to take down your songs. In other cases, the issues are more complicated. With Goya Menor’s hit record, permission was granted but the agreement limited the amount of streams the song could get. No thanks to TikTok and Lagos clubs, the song became a global phenomenon and the licensing agreement had to be restructured. 

Speaking of complications, we cannot speak definitely about Carterefe’s song. But with as much information as is in the public domain, it’s certain that the song is not a remake of any existing record. And song names can’t be given copyright protection. So, the existence of an existing song named Machala does not hinder the release of a thousand others. 

But if Machala was indeed trademarked as some folks now claim, it presents a different narrative. However, this is not the first time we’re seeing a trade. Paul Simon was a big name in the 1960s and 70s. Soon enough, he became the first major example of a song taken down for using a trademark. 

His lead single from the album There Goes Rhymin’ Simon was named Kodachrome. Unfortunately for him and Columbia Records, Kodachrome was a trademark of… no rewards for right guess… Kodak, the photography company. BBC radios took the song off its radios and refused to play it because it was a registered trademark. Mind you, the BBC (British Broadcasting Corp, for clarity) had strict rules against airing songs with product endorsement. 

Fast forward to 2020 and something quite similar to the Machala case happened. Bollywood overstepped its bounds with excessive singing and dancing. A soundtrack to the movie Khaali Peeli featured a song titled “Beyoncé Sharma Jayegi”. 

Blue Ivy’s mummy wasn’t feeling the vibe and requested that the song be taken down, partly because her name was a global trademark. The directors of the movie tried to play smart by changing the title to Beyonse but that didn’t solve anything. They eventually had to settle for  Duniya Sharma Jaayegi. And since Duniya is a common person like all of us, nobody batted an eyelid. 

But Bruno Mars has a song titled Versace on the Floor and different artists sing about Gucci and designers every other market day. Well, everyone is allowed to use a registered trademark that describes the quality or value of a product. That’s called descriptive fair use. So, singing about how fast your Ferrari moves in a hit record is simply describing a product. And it’s also free publicity, so no crime is committed. 

Another issue is the class of trademark. For example, “Beyonce” (as an exact term) is registered across four trademark classes under the USPTO. Unsurprisingly, class 41 is included, protecting the trademark from unauthorized use in the entertainment services industry. 

So, you see, if Machala was indeed trademarked, which we doubt, riding on the goodwill without appropriate permission could spark a potential trademark infringement. But if you’ve been in the music industry long enough, you can take a lucky guess that Wizkid is not someone to care about who sings what. 

Split sheet. Here’s where we think the problem lies. Back to Mockingbird. You see, it’s different to launch your career on the platform provided by a bigger artiste. And it’s another thing to be shrewd in your dealings. 

A split sheet is simply a business document that indicates who gets what from a musical record. So, it’s from a split sheet that determines that Toni Braxton gets 60%, Atlantic Records gets 30%, Chopstix gets 4%, the other 8 songwriters share 5% and Burna Boy takes 1%. This is a hypothetical split sheet on the streaming revenue for Last Last, the MTV Song of the Summer that never was. Please note, hypothetical. 

It’s arguable that Carterefe and Berri Tiga were lost in the euphoria of their banger and didn’t smoothen these edges. The funny thing is, they didn’t even need a lawyer. It just takes basic math and two consenting adults. But what do we know? And if there is an argument on revenue sharing, it’s common to see artists take down their songs from streaming platforms. 

On days like this, we wish Wizkid was more vocal. In the end, all we’ll get is “See you, London 11.11” *inserts the infamous eagle*

Whether Machala will get back on streaming platforms or not, nobody knows. But at least we can boast that we’re the reason you won’t ask “why” when next you see “this song is not currently available” on Spotify. 

Another issue is the class of trademark. For example, “Beyonce” (as an exact term) is registered
across four trademark classes under the USPTO. Unsurprisingly, class 41 is included, protecting
the trademark from unauthorized use in the entertainment services industry.
So, you see, if Machala was indeed trademarked, which we doubt, riding on the goodwill without
appropriate permission could spark a potential trademark infringement. But if you’ve been in the
music industry long enough, you can take a lucky guess that Wizkid is not someone to care
about who sings what.
Split sheet. Here’s where we think the problem lies. Back to Mockingbird. You see, it’s different
to launch your career on the platform provided by a bigger artiste. And it’s another thing to be
shrewd in your dealings.
A split sheet is simply a business document that indicates who gets what from a musical record.
So, it’s from a split sheet that determines that Toni Braxton gets 60%, Atlantic Records gets
30%, Chopstix gets 4%, the other 8 songwriters share 5% and Burna Boy takes 1%. This is a
hypothetical split sheet on the streaming revenue for Last Last, the MTV Song of the Summer
that never was. Please note, hypothetical.
It’s arguable that Carterefe and Berri Tiga were lost in the euphoria of their banger and didn’t
smoothen these edges. The funny thing is, they didn’t even need a lawyer. It just takes basic
math and two consenting adults. But what do we know? And if there is an argument on revenue
sharing, it’s common to see artists take down their songs from streaming platforms.
On days like this, we wish Wizkid was more vocal. In the end, all we’ll get is “See you, London
11.11” inserts the infamous eagle
Whether Machala will get back on streaming platforms or not, nobody knows. But at least we
can boast that we’re the reason you won’t ask “why” when next you see “this song is not
currently available” on Spotify.

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