Thursday 1 September 2016

Afro Ng'ombe

IP and African Music Industries: An Interview with Phil Chard - part 3

Zambian Music Copyright Protection Society,
interesting agreements?
Welcome back for part 3 of our interview* with Phil Chard.  We left off discussing artists’ respect for their craft.  Today, we’re going to get into how artists interact with copyright law.  A brief recap of where we were last time is at the top in grey. (Part 1; Part 2)

Little Leo:  It sounds like you’re also saying in some ways the artists don’t respect their craft, that they’re not taking it seriously.

Phil:  To a certain extent, it’s true.  There’s a culture here, a microwavable culture.  Everyone is trying to get the next big hit, the next big headline, the next trending topic, with no real consideration to the long-term ramifications of what they’re doing.  And it gets frustrating.  Even large organizations, they’ll rather have a quote-unquote Twitter celebrity do an absolutely pointless interview than have people that actually produce quality editorial content do that stuff.  And it seeps down to the consumer because now the consumer is like “why should I spend 30 minutes of my time watching this good interview, when I can watch a listicle that’s 3 minutes, that tells me nothing but is entertaining.”  So, it now devalues the content across the board.

Phil (cont.): There’s so many other things, like artists will complain about piracy, and people not paying for their music, but they’ll go and download or illegally steal someone’s content.  Just last week, we had an interview we did with an artist called HHP.  I’ve known HHP for quite some time.  He respected the fact that whenever he’d do major events he’d always see me there.  And I’d always be flying in to cover these events.  He was impressed by the fact that I was always there.  He was asking me, “Dude, are you based here?”  I’m like, “No, I’m flying in and out; I’ve got a day job.  This is what I do on the weekends because I care for the culture.”  He had just got out of rehab.  He had suffered a bout of depression; he had attempted suicide.  He went on the radio and spoke about it.  And then they put him on meds and he wasn’t happy with the side-effects of the meds, so he went to rehab to wean himself off the medication.  And he was going to deal with the depression naturally.  So he met me after he just got out of rehab, and he was like, “come to my house tomorrow; I’m going to give you the best interview you’ve ever had.”

So we go to his house.  We spent like the whole day with him.  It was actually a great experience.  Then during the interview, he goes on a rant about disrespectful young artists that are talking out of turn, that basically feel the need to mention older artists’ names and saying “I’m now better than this artist.”  That, “now I make more money than this artist.”  And he was like, “That’s extremely disrespectful and in my culture we don’t do that.”  And he had some very choice words, some very apt words, and that section of the interview went viral.

People started taking it out of context, which kind of annoyed me because that’s the last thing I wanted to do.  I’d actually held onto that interview for a couple of weeks because I was weighing it, “if I release this, there’s a good and there’s a bad.”  And I didn’t want any negative energy to come over him because I respect this man as an artist.  But, all that being said, this interview goes extremely viral.  I keep getting these pings off other websites and other blogs, downloading the video and re-uploading it as their own.  Now I’m playing whack-a-mole on Facebook, reporting all these cases, and on YouTube.

And then last week, an artist who had actually complained about people illegally downloading his music, takes this interview, samples it in a song, and then he hosts it on another blog.  And this artist, I’ve interviewed him several times.  He knows me and he knows my number.  His producers know me.  Not one of them thought to contact me and at least just get permission and ask, “Hey, Phil, we’ve got your content; we want to use it in a song.  Would you mind if we use it?”  And it’s a free song; I’m not going to charge them for it.  The least I would do is say, “Ok, that’s great guys, use the sample, but at least give me the exclusive so I can host it on my site so it’s mutually beneficial to both of us.”  But now another website is benefiting from my content and I am just stuck holding my hands doing nothing.

That’s a common thing that they do.  They’ll complain about downloads but they’ll blatantly sample an American song.  You find, Cassper Nyovest was also  ranting about people not respecting his music.  But there’s a Childish Gambino song called “Heartbeat”; there’s a melody bar-for-bar, they stole that whole melody and he used it in one of his songs ("Style Se Legit").  He’s got another song called “Mama I Made It,” that’s a carbon copy of a Drake song, beats, melody, rhyme pattern, everything.  His breakout hit, “Doc Shebeleza, the chord progression was a direct carbon copy of a Lex Luger beat.  Lex Luger’s a producer for Rick Ross.  So, there’s just a culture of mediocrity, that’s what we call it here.

Everyone is very happy with the status quo.  They’re very happy middle of the road.  No one is trying to be exceptional.  And if they do try to be exceptional, they pull you back into the pack very quickly.  You don’t want to be the odd one out.  That’s when they start casting you out.  “Oh, you said this, ok, you’re not getting invited to this event anymore.  Oh, you bothered to talk about this, ok, you’re not getting this exclusive anymore.”

L:  Bringing it back to the copyright issues a bit, I definitely hear it, it’s clear you do, too: the artists complaining about infringement with downloads, but then turning around and doing it themselves.  How much do you get the impression that artists actually understand copyright or are familiar with it?

P:  They understand it when it directly affects them.  I don’t know if you caught the #CreditTheCreator hashtag that went viral about three weeks ago.  {See also #CreditThePhotographer.} 

L:  I think I missed that one.

P:  Basically what had happened, there’s a photographer called Austin Malema.  Austin Malema was invited to the SAMAs, the South African Music Awards, to take photos backstage.  He was doing it on his own capacity, he wasn’t hired by the SAMAs.  He just got a pass and was taking them for himself.  One of the photos he took, he took a photo of a celebrity called Pearl Thusi , and he posted it on his Instagram page and he tagged her.  She then liked the photo and reposted it.  When she reposted it, she didn’t give him credit, and she says, ‘I don’t know who took this photo, but I love it.”  He got irate, “but you know who took it because you liked it and you saw it on my page.”  Her argument was that “you could have just have easily taken that photo from someone else so I can’t really verify that you took it.” 
There were obviously some conversations behind the scenes that led to this.  After he explained that it was his photo, she still refused to credit him.  He got very irate and sent a takedown notice to Instagram.  Instagram took down the photo.  She then retaliated and said, “since you asked Instagram to take down the photo from my page, I will ask you to take your photo of me from your page.” 
And then people who are familiar with how intellectual property works were like, “That’s not how it works because you were in a public venue and he’s not using this photo for commercial gain.  It’s just for his page.  If you don’t credit him, that’s a loss of revenue because there’s an investment he’s made in getting to the venue, paying for the equipment, etc.”  And then the argument raged on where artists were on the side of “Why are you taking photos of me?  If you don’t want me to repost your photos, don’t take photos of me.”  And we were like “That’s not how it works because you were in a public space.  If you’re in a public space, we have the right to take photos of you as long as it’s not incriminating.  And if we’re not selling the photos, then it’s fair use.”  Artists clearly didn’t understand that concept and they’re like. “Well we’re the celebrities; we have rights to those photos.” 
There’s also a photographer called Michelle Hunder.  She’s from Australia.  She caught wind of this and she sent me an article.  She had the same issue with a rapper from America called Danny Brown.  He did the same thing.  He put a photo up of hers.  Her editor then got hold of him and said, “Thanks for posting the photo but do you mind just crediting the photographer because that’s the only way she’s going to get credit.”  And then he threw a rant and said, “No, I’m just going to take the photo down.”  And then that was that.

L:  So much fighting just over credit, not even remuneration or anything like that.

P:  That’s it.  Even me, I’m a photographer.  I’ll see it so many times.  I’ll take a photo of an artist.  I’ll tag them.  They’ll repost it.  They won’t credit me.  And they’ll ruin the photo with filters.

L:  I wanted to switch to some other areas of IP.  We started getting a little into rights of publicity with the artists saying “well that’s of me, so take it down.”  And you’ve already touched on the public place sort of aspect.  You also talked a bit about brands and artists knowing their brands and taking brand ownership.  How often do you see artists and people in the industry using the legal tools that are available to them for brand ownership, things like trademark registrations and that?

P:  It’s hard to determine because a lot of that stuff is behind the scenes.  I’m trying to think of a copyright infringement case that actually went through.  Off-hand, I really can’t think of any copyright infringement cases that have been filed.

L:  Well we had the recent one with TIGO that you guys talked about on the African Hip Hop Blog [at 5:30 mark].

P:  Yes.

L:  MTN’s had a couple issues.

P:  If I’m not mistaken both MTN in South Africa and Nigeria, there’s some pending aspects on payments.  Those are definitely the big ones.  There’s another network provider that also has an issue with callback tones.  In most instances, that’s when artists recognize that their copyrights are being infringed upon.  When their music is being distributed and they aren’t seeing any remuneration for it. 
There’s something going on in Zambia.  The Zambian music rights association [ZAMCOPS]is basically shifting all its artists.  There’s a guy from Zambia who came down and we were discussing the scene.  He showed me a deed of assignment that’s been issued by ZAMCOPS, which already struck me as odd because I’m like, “why would they be issuing deeds of assignment for works?”  One of the clauses basically states that upon signing this contract all artists are surrendering all mechanical and performing rights to their works to the bearer, the bearer being ZAMCOPS.  Thereafter, I already knew exactly what they were doing.  Then I asked him, have there been any artists who have seen their music being distributed without their knowledge?  And he said, “Yes, there’s actually a couple of artists who have their music on iTunes, which they never put on iTunes. " And when they checked, it says under copyright from the Zambian Music Copyright Protection Society.  And they’ve never received payment for this.  Basically, an organization purporting to be for the rights of the artists is stealing their content, stealing their rights, distributing their content, and not remunerating them for it.

We’ll break here for today.  Join us next time, when we delve further into contractual agreements and get into trade secrets a bit.
*The conversation has been edited for clarity and reading ease; it is not an exact transcript.

Afro Ng'ombe

Afro Ng'ombe

Subscribe via email (you'll be added to our Google Group)