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The Jerusalema IP Challenge

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Published Date: February 26, 2021

Hot on the heels of the Jerusalema Dance Challenge that took the world by storm last year, a new challenge is developing for some organizations that uploaded videos online showcasing their brands and workforces dancing to South African DJ Master KG’s global megahit, ‘Jerusalema’, without permission from the rights holders to do so.

Recent media reports inform that the Warner Music Group, that manages the copyright in the Jerusalema song internationally, approached several organizations in Germany for the payment of license fees for the use of the song.

A social media backlash ensued as some of the entities that were approached include hospitals whose front-line healthcare workers performed the dance to support the global message of togetherness that the song has fuelled.  Others were commercial airlines, however, and businesses that could look to benefit commercially from their alignment with the poignant creative movement.

Questions were raised as to when it becomes unethical for copyright owners to demand the payment of usage fees.

Some questioned the timing of the payment demands, suggesting a form of entrapment, unbeknownst thereto that licensing models were already in place at the onset of the challenge, and some of the German entities approached the rights holders to negotiate and settle license fees out of their own volition, in recognition that usage fees were payable.

Music and Copyright

Copyright is an intricate area of the law that is often misunderstood due to its technical nature, and the complexities of the industries to which it applies.

In today’s digital environment, user-upload internet platforms that enable global audiences to instantaneously access uploaded content, often including copyright protected music and films, for free, have largely contributed towards shaping public perception that content that is available online for free, can be distributed and repurposed without the need to obtain permission from rights holders.

With billions of people accessing content on these platforms for free, nothing compels them to purchase the content elsewhere, and ultimately it is the artists who lose out on income.  In the music industry, this phenomenon is known as the ‘value gap’, which together with the scourge of piracy, poses the most significant challenges to the livelihoods of creatives.

Copyright confers on authors, composers and producers of original works, such as literary works (e.g. song lyrics), musical compositions, and sound and video recordings, rights to exclusively control the commercialization of their works.  To assist with the management of these rights, collective rights management organizations, record labels or publishing houses are appointed as representatives of the artists to negotiate license fees on their behalf with third parties that wish to make commercial uses of their works.

When a song is incorporated in an audiovisual work it is necessary to first secure a ‘synchronization license’ from the rights holder.  Income generated from the use of music in movies, video games, and other audiovisual works is where artists look to recoup revenues lost due to free usages and piracy which decimates their ability to make a living from more traditional business models only, like album sales and live performances, especially during the pandemic when live performances were not feasible.

When a video incorporating music is posted online, the uploader requires the permission of the copyright holders in the song lyrics, musical composition, and master recording, otherwise there exists a risk of liability for copyright infringement.

In many instances, rights holders would not take any action to enforce their rights, even though they potentially could, as artists encourage creative fan engagement.

When the late music icon, David Bowie, was asked whether he would sue Chris Hadfield, the astronaut who released an unauthorized cover of Bowie’s hit song, Space Oddity, while the astronaut circled the earth on the international space station, Bowie responded by saying that he considered the song to be the most poignant version ever released, and he assisted to keep the music video available for viewing online.  Copyright is not relied on to ‘lock up works’ and prevent user access without due cause.

Where fan engagement starts involving a commercial angle, from which commercial value could be derived from the unauthorized use of a protected work, red lights start flashing for rights holders, and rightly so.

Master KG and Nomcebo (the songwriters); their record labels, and the Angolan dance troupe, Fenómenos do Semba, whose viral video of them performing the unique dance moves that millions around the world would later try to emulate, wholeheartedly supported the use of the music and dance moves by individuals around the world.

When the dance challenge reached unprecedented levels of fame, some companies and organizations started participating as well.  Where corporates would focus the attention on their own corporate and IP assets, including their brands, products and services, without obtaining a license for the use of the music in what becomes more of a corporate promo video, than a late entry into a viral dance challenge, lines were being crossed.

Keep on your dancing shoes

It is not surprising that the rights holders of the Jerusalema song are actively seeking to engage with third parties that made unlicensed use of the song.

Individuals remain encouraged to continue to learn the steps and take part in the dance challenge without fear of a heavy-handed knock on the door.  Social media influencers should take caution though, as their use of the music might well amount to commercial use, since they derive profit from sponsored posts, and attract higher fees depending on their following.

Companies and organizations should engage with rights holders before making any use of copyright protected music.  When licenses are in place, this ensures that the artists who create the works that we deem valuable and desirable to enjoy, receive income from commercialization activities and that they remain incentivized to create that next work of art that will change your world.

There is more room for corporates to support artists, if only by ensuring that license fees are paid where due, and to support creative movements, to generate momentum for investment into new creative projects that can light up the world, even in the darkest of times.  Jerusalema showed the way.  Togetherness is where it starts.

Stephen Hollis
Partner | Trade Mark Attorney

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