E-Concerts as a Secondary Income Stream for the Entertainer (Vol 2): Intellectual Property Considerations

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INTRODUCTION 

As the impediment to public gatherings caused by the coronavirus pandemic lingers on, the development of e-concerts has now become very popular amongst entertainers. The views from live-streaming performances have been on the rise as more people are now glued to the internet. For the artistes, it has become an avenue to digitally engage with fans whilst staying relevant in the industry. Live streaming of entertainment contents (e.g. e-sports, talk-shows etc.) and e-concerts represent an alternative source of revenue to music or performing artistes. The poser therefore is; how can an artiste commercialize e-concerts and protect ownership of the content? [1] This article seeks to give insight to different ways artistes can utilize e-concerts for commercial benefits, and the intellectual property considerations whilst organizing an e-concert.

YouTuber Remuneration 

YouTuber is a popular term for describing YouTube video content creators on YouTube. YouTube in collaboration with Vevo,[2] is known to be an effective means for artiste to publish and stream their music videos. A YouTuber would usually get paid for a certain number of views their videos get on YouTube. There are 3 main ways an artiste/YouTuber can earn money via YouTube; YouTube partner program, YouTube affiliate marketing; and YouTube Sponsorships.[3] YouTube also has a live streaming service and this is an effective tool for e-concerts. A setback with this mode of making money is that it is only advantageous for artistes who have gained YouTuber status or artistes with huge fan base that are either subscribers to the artiste YouTube channel or fans that will watch the artiste live performance on YouTube.

Sponsorships 

Events sponsorships have always been part and parcel of live concerts. Over the years, artistes have garnered remunerations and royalties in live performances from event sponsors. Just recently, Trophy Stout sponsored Tuface Idibia’s e-concert which took place on April 12, 2020. This e-concert was organised to raise money in support of the fight against the coronavirus pandemic in Nigeria. It is usually a win-win for both the artiste and the sponsor who either wants to gain market visibility or sell its product. Sponsorships of e-concert will be a veritable avenue for brands to also maintain relevance during this ‘coronavirus era’, while also marketing their products. In 2016 big brand Toyota sponsored Tumblr and Yahoo’s 2016 livestream of the country music festival Stagecoach (Coachella’s sister event, which drew about 75,000 fans). The video player included Toyota branding at the top of the page, as well as 30 seconds pre-roll and shorter “bumper” videos that ran before the content began playing.[4] Famous artistes can leverage on sponsorship deals of an e-concert for financial gains.

In the alternative, Internet Service Providers and telecommunication companies like MTN Nigeria, Globalcom and Airtel Nigeria, who are already known to support artistes through sponsorship deals can also leverage on e-concerts, either as corporate social responsibility (CSR) or marketing strategy for their brands and in turn, artistes can earn remunerations and royalties from performances. Artistes can collaborate with telecoms for reduced data bundles and internet subscription fee and the provision of better internet quality to support live-streaming shows.

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Media outlets like Amazon Prime Video, Vevo and Netflix can also leverage on e-concerts by collaborating with artistes through sponsorship deals for commercial gains. While these media outlets will pay the artistes’ royalties for their performance, the media outlets can also make money through subscriptions on their platforms.

Collaborative Agreement 

The essence of an agreement can never be overemphasised, as it protects parties to the agreement from eventual liabilities. A novel and more structural means by which an artiste can make money via e-concerts, is through a collaborative agreement. This agreement can be between the artist and a platform provider like Instagram, Facebook, TwitchTV etc., or an agreement between the artiste and a platform developer. The latter is what the writers seek to propose. With the developments in technology, artistes can take hold of their e-concerts by collaborating with an app developer to build live-streaming enabled platforms. These platforms will not only be built as live-streaming platforms, but also as payment portals through which fans can either subscribe to the platform or book concerts via the platform. The setback with this methodology is that it will require financial investment by the artiste but the advantage for the artiste is that through an agreement, the artiste can secure ownership rights to the platform and patent rights to the technology.

This agreement will not only spell out the obligations of each party towards the commercial success of the concert, but will also give the parties the autonomy to agree on certain terms in the agreement. As part of the terms of the agreement, parties can agree on who bears indemnity, a dispute settlement mechanism, intellectual property rights, ownership of performance rights to the live performance and importantly, parties’ profit share (remuneration and royalties) from the e-concert. The agreement will also enable the artist to be protected from possible law suits that may emanate from persons who claim dissatisfaction from the use of the platform.

Intellectual Property Considerations 

Technology is making it cheaper to copy, transfer, and manipulate information and intellectual property. For example, devices such as optical disk storage systems and other virtual recording applications may allow the average person to collect entire libraries of copyrighted textual, musical, and visual works from the comfort of their home. As a result, owners of rights face greater difficulty detecting, proving, and stopping infringements. Thus, they may have less incentive to make their works generally available.

An artistes’ most invaluable asset is their   intellectual property which is protected by copyrights and trademark laws. The majority of the terms in entertainment contracts concern the ownership and use of this property.

Whilst organizing e-concerts or engaging in live streaming of musical content, it is important to have a basic understanding of what legal (intellectual property) issues might arise. The first issue is who owns the content. The question of ownership of intellectual property rights can sometimes be complicated. It consists of ownership of copyrights, trademarks, licenses, and all sorts of things that you need to first consider to make sure that you are safely acting within the existing laws. All of these can easily be resolved by agreement of the parties in their contract.

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Trademarks 

A trademark right refers to the legal protection of the symbolic value and use of a word, name, brand, logo, or device that the trademark owner uses to identify or distinguish its goods from those of others. An artist seeking to leverage on e-concerts as an alternative income stream should endeavour to protect the branding of such concerts. By opening up new marketing channels, the digital economy offers wider scope for both the legitimate and counterfeit use of trademarks. In order to obtain rights to a brand or trademark, you need to register the trademark to get the legal right and protection accruing to it. For example; where an artist organizes an e-concert on his social media page and brands it; “The Friday Night Show”, he must take steps to register this brand against unauthorized use by third parties seeking to profit from using this trademark.

Copyright

Copyright refers to the original works of authorship, such as art, advertising copy, books, articles, music, movies, software, etc. A copyright gives the owner the exclusive right to make copies of the work and to prepare derivative works (such as sequels or revision, and even organizing an e-concert) based on the work. Illegal copying and distribution of copyright materials has had a hugely disruptive effect on a range of copyright industries, including music, film, internet-based services. According to European Commissioner Neelie Kroes,[5] copyright enforcement is often entangled in sensitive questions about privacy and data protection. Given the global nature of the digital space, many of these challenges increasingly confront policy-makers and regulators in markets around the world.

The exclusive rights recognized in the 1996 WIPO Internet Treaties (the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)) have enabled these positive developments. The legal and commercial certainty they afford at the international level has helped make it possible for digital services to launch and reach consumers in new markets.

The use of e-concerts as an alternative income stream to artists will no doubt raise a host of legal issues, primarily in the area of copyright infringement. Anyone rebroadcasting an entire live simulcast is committing copyright infringement and can be liable to substantial damages.[6] The right to publicly perform and display a copyrighted work are two of the exclusive rights that a copyright owner is entitled to. A copyright owner also has the exclusive right to reproduce and distribute a copyrighted work. Any of these rights could be infringed upon by a live stream. Therefore, the most important consideration is to ensure that you are only including authorized content in your live e-concert. Avoid streaming or including unoriginal or copyrighted materials and the re-broadcasting of background music, audio, or images that might be protected by copyright. This is because live streaming generally does not allow you to edit the video, if you infringe someone’s copyright there can be very serious legal consequences. 

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CONCLUSION 

The foregoing modalities create a basic insight on how an artiste can leverage on e-concerts for financial gains. In a changing world engulfed by technological disruptions, the need to diversify skills while staying relevant in the entertainment industry is germane for an artiste. While e-concert cannot replace a live on-stage performances, it can be a practical alternative.  With a sizeable fan base, proper structure, good internet connectivity and the creative acumen of the artiste, e-concert can be a secondary means of income stream for an artiste. 5G network and WiFi6 as we know it, will bring about faster internet speed and thus, play a positive role for the sustainability of e-concerts.

However, there are a host of other legal considerations which includes the distinction between commercial and non-commercial uses, possible trademark or copyright infringements and other legal issues that might arise out of the use of a live stream. To mitigate any potential risk, we recommend that you consult an attorney well versed in these issues before organizing an e-concert or live streaming your content.

Read Volume (1) here

Written by:

  • Pius Owhoavwodua –  Intermediate Associate of Perchstone and Graeys (Solicitors, Advocates, and Arbitrators). He heads of the firm’s Intellectual Property Practise Group.
  • Deinma Dibi – Associate of Perchstone and Graeys (Solicitors, Advocates, and Arbitrators). He holds an LL.M. in International Commercial Law from the University of Aberdeen, Scotland. He is an Associate member of the Chartered Institute of Arbitrators UK (ACIarb) and a member of the Institute of Chartered Mediators and Conciliators (ChMc).

Footnotes

[1] Volume 1 to this series can be accessed via https://thenigerialawyer.com/covid-19-e-concerts-as-a-secondary-income-stream-for-the-entertainer-by-deinma-dibi/

[2] Vevo is the world’s leading music video and entertainment platform that enables artiste to showcase their music through other media platforms through its distribution partnership deals with the platform. Vevo currently runs on, YouTube, Roku, Samsung TV Plus, Amazon Fire TV, Amazon Echo, Apple TV, Pluto TV, Sky Q, Now TV and Virgin Media.

[3] https://learn.g2.com/how-much-do-youtubers-make accessed April 18, 2020. https://www.investopedia.com/ask/answers/012015/how-do-people-make-money-videos-they-upload-youtube.asp accessed April, 20, 2020.

[4] https://www.eventbrite.com/blog/sponsorship-packages-ds00/ accessed April 18, 2020.

[5] The GSR discussion paper on “Intellectual Property Rights in today’s digital economy”, on which this article is based, was written by A. Denton, Senior Telecommunications Expert.

[6] See Section 19 of the Copyright Act LFN 2004.

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