When I first got wind that Ghanaian artist Tic Tac and Tony Tetuila were suing Dj Tunez and Wizkid for alleged copyright infringement, I was instantly drawn to the Robin Thicke and Pharrell Williams and Marvin Gaye dispute over the mega-hit song “blurred lines”. In this famous case, there was a dispute over the structural and tonal elements of the song. In this day and age with all the legal precedent and basic international regularly popping up in mainstream media, surely disputes could only arise from the “scientific” confusion. I was wrong. How anyone could think they could get away with this level of appropriation without clearance, is indicative of an industry that is lacking in basic copyright awareness.
To give a bit of historical context, using past work has always been the essence of songwriting and composition. Entire genres have been spawned off appropriation, for example, Rock & roll has its roots in blues and Fela’s afro-beat style inspired the plethora of afro-pop artists currently active. However, Decades of copyright case law have shown us that there is a fine line between what could be seen as an inspiration and what constitutes outright intellectual property theft.
Copyright is contained in the sound recording in both the instrumentals and the lyrics. This reflected in both the U.K. and the U.S.; Simply put, unauthorised use of copyrighted material owned by another a song without permission constitutes immediate copyright infringement. That being said it is important to note that for infringement to take place a “substantial part” of a copyrighted work must have been used. The definition of substantial varies internationally. That is irrelevant here though because you’d be hard-pressed to find less contentious infringement than this one.
To grasp the principle of substantial similarity, the Unreported Hyperion case serves as a defining authority. In this case an application for summary judgment brought by Hyperion Records who owned the copyright in a sound recording of the medieval chant, “O Euchari”. The main principle this case established was that an artist didn’t have to copy the entire body of work to be guilty of infringement, small segments from the original work could be seen as forming a distinct copyright work in their own right. These segments also had to comply with the sanctity principle, i.e for a sample to be classed as a substantial part it needs to be one that has taken a defining component of the original author’s work.
Going by this principle there appears to be a lot more than inspiration occurring here. In Tic Tac’s and Tony Tetuila’s song “Fe fe ne fe” The hook of the song which goes “Fefe ne fe na the beauty of a woman”.
The lyrics and melody have transcended a generation and are the reference point for anyone trying to describe the song as a whole.
In DJ Tunez and Wizkid’s version aptly titled “Gbese” given the circumstances, this essence so to speak was imported into their track the only difference being that Wizkid was the one delivering the vocals.
This hook encompassing the catchy melody and lyrics is undoubtedly a defining component of the original song and by this metric forms a substantial part of the song.
I hear people also making the argument that lyric “Fefe ne fe” was first used in song by Fela which is correct, but in the inspiration vs theft context the Tic Tac and Tony Tetuila version falls squarely in the former. Copyright does not protect a single idea or a single idea expressed in words rather it is the combination of words or words with other elements and in this case, it would be the words and accompanying melody. In addition to this, I’m sure if this lyric was put under forensic scrutiny it would fail the substantial similarity test.
Intellectual property is evolving rapidly in Nigeria. All it takes is for one artist to get a big payday from a suit like this to open the floodgates.
The principle discussed here should be common knowledge and one need not be a lawyer to be conversant with it.