Written By: Pius Owhoavwodua* & Deinma Dibi
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.
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.
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[1] (WCT) and
the WIPO Performances and
Phonograms Treaty[2] (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.
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.
Lagos: 1, Perchstone & Graeys Close, off Remi
Olowude, Lekki Epe Expressway, Lagos; Tel: +234- 1-3429131,
7611051
Abuja: D3, Jima Plaza, 1627 Ahmadu Bello Way,
Area 11, Garki Abuja; Tel: +234 92919191, 07045984792
Benin City: 40, Adesogbe Road, Benin City, Edo
State; Tel: +234 7068518650, 07045984776
Email: editor@perchstoneandgraeys.com;
counsel@perchstoneandgraeys.com
Website: www.perchstoneandgraeys.com[3]
http://www.lawtopic.ca/copyright-law/5-causes-to-register-your-works-with-the-us-copyright-workplace.html[4]
https://www.currentschoolnews.com/articles/trademark-registration-guidelines/[5]
https://marketingtwentyone.co.uk/business-book-introduction-sales/[6]
https://towardsdatascience.com/strategies-to-be-a-successful-youtuber-extensive-youtube-exploratory-analysis-part-1-2-40eee29554e6?gi=f2d68cf156e8[7]
Copyright: All rights reserved. No part of the
publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means without the prior
permission in writing of Perchstone & Graeys or as expressly
permitted by law.
Disclaimer: We invite you to note that the
content of this article is solely for general information purposes
only and should in no way be construed or relied on as legal
opinion. We urge you to contact us should you require specific
legal advice on an
- Pius is an Intermediate Associate of Perchstone and Graeys
(Solicitors, Advocates, and Arbitrators). He heads of the firm’s
Intellectual Property Practise Group. - Deinma is an 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).
[1] Volume 1 to this series can be accessed via covid-19-e-concerts-as-a-secondary-income-stream-for-the-entertainer-by-deinma-dibi/[8]
[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[9]
accessed April 18, 2020. https://www.investopedia.com/ask/answers/012015/how-do-people-make-money-videos-they-upload-youtube.asp[10] accessed April,
20, 2020.
[4] https://www.eventbrite.com/blog/sponsorship-packages-ds00/[11] 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.
Written By: Pius Owhoavwodua* & Deinma Dibi
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.
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.
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[1] (WCT) and
the WIPO Performances and
Phonograms Treaty[2] (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.
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.
Lagos: 1, Perchstone & Graeys Close, off Remi
Olowude, Lekki Epe Expressway, Lagos; Tel: +234- 1-3429131,
7611051
Abuja: D3, Jima Plaza, 1627 Ahmadu Bello Way,
Area 11, Garki Abuja; Tel: +234 92919191, 07045984792
Benin City: 40, Adesogbe Road, Benin City, Edo
State; Tel: +234 7068518650, 07045984776
Email: editor@perchstoneandgraeys.com;
counsel@perchstoneandgraeys.com
Website: www.perchstoneandgraeys.com[3]
http://www.lawtopic.ca/copyright-law/5-causes-to-register-your-works-with-the-us-copyright-workplace.html[4]
https://www.currentschoolnews.com/articles/trademark-registration-guidelines/[5]
https://marketingtwentyone.co.uk/business-book-introduction-sales/[6]
https://towardsdatascience.com/strategies-to-be-a-successful-youtuber-extensive-youtube-exploratory-analysis-part-1-2-40eee29554e6?gi=f2d68cf156e8[7]
Copyright: All rights reserved. No part of the
publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means without the prior
permission in writing of Perchstone & Graeys or as expressly
permitted by law.
Disclaimer: We invite you to note that the
content of this article is solely for general information purposes
only and should in no way be construed or relied on as legal
opinion. We urge you to contact us should you require specific
legal advice on an
- Pius is an Intermediate Associate of Perchstone and Graeys
(Solicitors, Advocates, and Arbitrators). He heads of the firm’s
Intellectual Property Practise Group. - Deinma is an 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).
[1] Volume 1 to this series can be accessed via covid-19-e-concerts-as-a-secondary-income-stream-for-the-entertainer-by-deinma-dibi/[8]
[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[9] accessed April 18, 2020.
https://www.investopedia.com/ask/answers/012015/how-do-people-make-money-videos-they-upload-youtube.asp[10] accessed April,
20, 2020.
[4] https://www.eventbrite.com/blog/sponsorship-packages-ds00/[11] 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.