Who owns the music? What artistes need to know

 What musicians need to know about intellectual property

As a recording artiste, one pours their heart and soul into creating music and spends countless hours honing their craft and establishing their niche.

And when they finally get the opportunity to record an album or a single, it feels like a dream come true.

However, that dream, more often than not, can quickly turn into a nightmare when it comes to signing a contract with a record label. You may find yourself in a predicament that is all too common in the Kenyan music industry, signing away the rights to your creative works to get the backing and distribution power of a label.

This contentious relationship between artistes and labels has set the stage for ugly fights as musicians try to take control and ownership over their music.

On Tuesday this week, for instance, Ashas’ Talent Management Limited sent out a statement on an alleged breach of contract by budding musician Kuky.

“In November 2021 Kuky signed an exclusive publishing and distribution agreement with Ashas Talent Management Limited for five years with an additional three-year extension option. As per the terms of this legally binding contract, Ashas Talent Management Limited now holds the master rights to all music produced, written or performed by Kuky…” reads the statement in part.

They claimed the budding femcee is in breach of contract as she has worked with other managers and producers without their consent, therefore, infringing on “Our intellectual property rights.”

“I did not breach any contract on my end. They (the management) terminated my contract not once, but twice. I did not ditch them as they allege but it is the other way round. I had stayed with them for a while and it got to a point when things were not moving. And as a creative I was frustrated. For seven months I had not released or done a project. The management had hinted that they were focusing on other artistes since they had spent a fortune on me,” said Kuky.

When we reached out to the management team, the Director of the stable, Asha Mutuku, said, “I do not have any malicious intentions towards her, but this was our last resort since she has been ignoring all our efforts for dialogue. Just to set the record straight, we never terminated her contract. She just left and started working with another label. This is where our problem is,” she said.

Kuky is set to release her new EP Resilient Rhymes this month with a Uganda-based label.

 Kuky [Instagram]

This is not an isolated case in the fights involving artistes, their managers and labels.

Stivo Simple Boy has for instance aired complaints and accusations targeted at his former management stable.

Other artistes, like in the case of Beryl Owano, who left her former manager after citing ‘irreconcilable differences’ had an agreement by word of mouth. And when things did not work out as expected she simply walked out.

“We call this a ‘gentleman’s agreement’; it is the most dangerous ‘agreement’ one can have in any business dealing. The undefined issues are many, leaving parties to do a lot of guesswork when dealing with each other. And when a dispute arises, it becomes a very messy affair, be it in mediation or even in litigation,” says Intellectual Property and Entertainment Lawyer Liz Lenjo, who is also the founder of MyIP Legal Studio.

“There are pertinent clauses that an artiste should look out for. When you get a contract, find a knowledgeable IP lawyer, artiste or manager who has had the vast experience to just explain some of those things to you. And then invest in yourself and go for basic IP classes,” says Lenjo. 

While recording artistes have long fought for ownership and control of their creative works, labels traditionally hold the rights to the master recordings and compositions, leaving artistes with little leverage or means to earn revenue from their music.

With artistes complaining of having put in the work but ultimately left on the shorter end of the stick, record labels counter that they provide investment and support for recording, marketing, and distributing the music. They claim ownership is necessary to recoup costs and generate profit. “I would say that this is not a one-sided battle, record labels are in business as well. Every contract's terms and agreements vary, but we should understand that we work in an ever-evolving industry. It is not always profitability over creativity and it should not be the other way around either. Record labels in particular put in lots of investments; at the end of the day, we look at the ROI. One cannot keep channelling money where there is no progress,” says Black Market Records head Cedric Singleton.

One thing that most people get wrong is the producer part.

“Most people believe that a producer is the person who makes beats. In law that is termed as the composer. So then they are not a producer per se, because a producer is the person who injects the financial investment for the sound recording, to be prepared or recorded. And then they become, the producer. So the producer is who puts the money behind the recording of the music,” says Lenjo. 

So you find most times it is more like a collaboration artiste can put in a down payment, and then they share the rights, where now the production house co-owns. Like 50 per cent, and the artiste can own 50 per cent depending on how they negotiate.

Labels provide essential infrastructure and investment in the music industry and breaching a legally binding contract can have serious consequences for an artiste.

Furthermore, the label is within its rights to take legal action against the artiste to recoup financial losses and damages. They may file a lawsuit to recover any upfront payments, recording costs, marketing expenses, and lost profits related to the undelivered music.

“A good contract would recognise that the musicians own the copyrights and that there is a transfer for a certain period. And the purpose of the transfer. The terms should be clear,” says Lenjo. 

“Unfortunately, publisher agreements never tend to be honest and clear, and you find that artistes need to negotiate. Unfortunately, most of them do not and take it as it is until they bite the dust, then it becomes an issue.”

Additionally, the label could prohibit the artiste from recording or releasing music with another label for a set time, as stipulated in the original agreement. Not forgetting that some contracts also include ‘restraint of trade’ clauses that prevent an artiste from performing or making public appearances for a certain time frame after the contract ends.

This does not necessarily deal with labels and artistes only as we have seen numerous dissatisfaction of artistes with the CMOs entrusted with collecting and distributing royalties. This includes even government agencies. Music is not just an art but a business in all aspects.

Recently, the National Youth Council of Kenya came up with a youth singing competition whereby the terms were outright outrageous. One of the rules of the competition was that a participant would irrevocably and unconditionally transfer all the intellectual property and copyrights to the council.

“The transfer of intellectual Property and Copyright shall encompass all rights, including but not limited to the right of use, reproduce, modify, adapt, distribute, publicly display and publicly perform the competition entries in whole or in part; in any media now known or hereafter developed, for any purpose, without any compensation to you,” read a subsection of the requirements of the competition.

They further said that the participants agree to indemnify and hold the promoter harmless from any claims, demands, or actions brought by any third party against the promoter arising out of or in connection with the competition entries, including any alleged infringement of intellectual property rights.

“If you are going to be in a contract that has the word perpetuity or implies perpetuity, then that is something you do not want to be associated with unless you have what is called a work-for-hire arrangement. And you are happy to give away your commercial rights to transfer or relinquish them. But still when you create any copyrighted works, even under work for hire, the right of attribution must be granted. And attribution simply means to be recognised as the author or creator of the work,” says Lenjo.

Two separate sets of copyrights come with every song: the composition rights and the master recording rights. In the most basic scenario, these two sets belong to the same person if one has both written and recorded a song from scratch.

However, that is not always the case. If one decides to do a cover version of someone else’s track, they will only get the master recording copyright, and the composition rights remain with the original holder.

 Stivo Simple Boy [Instagram]

That aside, artistes should always be aware that music is not just about the hit but it is a business in all aspects. Despite making music one needs to know the distribution and publishing channels. Music publishing is a bit tricky, but it is like a treasure chest for musicians.

Boy band Matata compares music with a cake. “Imagine your song is like a cake with two parts: the recording (how it sounds) and the recipe (how it is made). Both parts can earn you money,” they say.

“The recording (master rights) is like owning the cake itself. Every time someone eats a slice (streams or buys), you get a piece of the cake (royalties). Imagine your cake is eaten at a party, sold at a bakery (download/stream), or even in a movie. Each time, you earn some money. 

“Music publishers are like your cake agents. They find where your cake is enjoyed and make sure you get your fair share of the earnings. So, whether your cake is heard on the radio, sold online, or played in a movie, music publishing helps you get paid for every yummy slice,” they say.

“Remember those secret recipes (compositions)? You need to tell the cake association (copyright office) about them so you are officially the cake boss,” they say.

Unfortunately, there have also been unending squabbles between all bodies mandated with championing artistes copyrights and royalties.