20200226_161353_0000.png

EP02: IS A VIDEO VIXEN AN AUTHOR?

A video vixen is commonly described as a female model who appears in music videos wearing scanty clothing. They are sometimes called Eye Candy.
Eye Candies are not always female. With the growing popularity of Female Artistes, especially in Hip-hop, there are now many Male Eye Candies in the Industry. Male Eye Candies dont have a specific popular name so for the sake of this article I’ll refer to them as Foxes, the male version of Vixens.
To understand Video Vixens and Foxes let’s start with this fictional Story;

Once upon a Time in a Land not so far away, there lived a pretty teenage boy called Kanari. At 18 he had featured in many church dramas, school pageantries and dance competitions. One day he got a call from a famous video director’s assistant offering him a role in a music video. He was supposed to act as a stunt double for a renown ‘A’ actor. His job was to shoot some explicit dance scenes. After the video shoot a dispute arose between the Actor and the Artiste which led to a press release where the actor dissociated himself from the Artiste. The news was all over social media, so Kanari called the Video Director but was assured that another actor would be cast to replace the first one. However, months later the video got released, no replacement was casted and Kanari’s face was everywhere. He felt cheated and called the Video Director and demanded for extra pay but the director turned him down.

Now he has reached out to a lawyer.

Video Vixens/Foxes are a major part of the Music Industry in Nigeria and many other parts of the world. They feature in videos (obviously, they are called VIDEO Vixens/Foxes) and are a part of the creative process of passing the message of the song to its audience but, they are not usually regarded as creative people.
Calling them authors seems like quite a stretch but Nigerian Law tells us “They CAN be Authors”. Now this doesn’t mean they are free to be writers, rather it means they can be Creators of Intellectual Property.

To understand the kind of Intellectual Property they create we would have to explore what they actually do in Music Videos. Some of them dance, some act and some just pose, sorry model. They can do one, two or all three, depending on the Direction of the video (subject to agreement). When they act they possess a Performer’s Right which is a Neighbouring Intellectual Property Right to the popular Copyright, and when they dance they could curate a unique composition of movements or patterned succession of gestures which is recognized as Choreographic Work under the Copyright Act.
A Choreographic Work is a sub-category of Literary works, the creators of which are recognized as Authors by Section 51 of the Act. So yeah, a Video Vixen/Fox can be an author if (s)he creates a Choreographic Work.

RIGHTS OF A VIDEO VIXEN/FOX

  1. Right to Dignity of Human Persons
  2. Image Right
  3. Right to Choreographic Work
  4. Right to claim Authorship

RIGHT TO DIGNITY OF HUMAN PERSONS

The Nigerian Constitution provides fundamental human rights from Section 33 to Section 43 for all its Citizens; Section 43 would however be my focus as it protects the human dignity.
There are cases where Vixens are pimped out and forced to prostitute themselves in exchange for Video gigs or subjected to inhumane treatments which they agree to because of the false impression that they have no choice. Even in cases where Video Directors have signed contracts with the Vixens, or most likely; carried out PART PERFORMANCE (especially for Oral contracts) through accomodation and transportation to shooting locations, the Vixen still has the legal right to refuse to do or allow anything to be done to or with her that injures her dignity (physical or emotional abuse).

Every individual is entitled to respect for the dignity of his person and accordingly –
a) No person shall be subjected to torture or to inhumane or DEGRADING TREATMENT
b) No person shall be held in slavery or servitude; and
c) No person shall be required to perform FORCED OR COMPULSORY LABOUR.

– Section 34 (1) 1999 Constitution of the Federal Republic Nigerian as amended.

NB: The Penal Code and Criminal Code also have similar provisions with complementary penalties.

So, even upon signing an agreement or carrying out Part Performance of Oral Agreements, a Vixen/Fox still has a right to sue for any unauthorized contact with her/his body before, during and after the shoot. Any trespass to her body could be actionable as Assault or Battery depending on the circumstances.

IMAGE RIGHT

There are some cases where a Vixen agrees to perform explicitly in a Video on the condition that her face doesn’t show due to some brand or personal reasons. Any publishing of her face in such a case would be a violation of contract- Oral, Written or Implied- and an infringement on her Constitutional Privacy Rights.
Image rights are not well developed and protected under Nigerian Law so recourse is often made to Breach of Contract and Infringement of Privacy Rights.

The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

– Section 37 1999 Constitution of the Federal Republic Nigerian as amended.

RIGHT TO CHOREOGRAPHIC WORKS

The Nigerian Copyright Act defines Choreographic Work as “a Composition of movements for dancing or any other patterned succession of gestures mostly created to accompanying music”. As a sub-category of Literary work, the author of Choreographic works or better still a Choreographer has all the Intellectual Property Rights given to Literary Works and also all the Neighbouring Rights given to Performers. Pretty cool yeah?
Well the problem with Choreography or Dance is that it relies on other Intellectual Properties to be created. Of course there are exceptions but those are rare. The entanglement of Dance with Musical Works give rise to certain questions;

  1. Does a Dancer owe Royalties to the owners of the song she choreographed to?
  2. Part of the performance rights a Dancer has is the exclusive control of recording and live broadcasts; What if the recording or broadcast is done by the Song Owner?
  3. What if the Dancer, like Kanari in our story, was hired to perform for a music video, who owns the rights to the recording and broadcast of the Choreographic Work then?
  4. Is it okay for a Dancer to perform an expression of Folklore; especially for commercial purposes.

These questions aren’t limited to just Video Vixens, they relate to all dancers.

When describing the right of an Author of a musical work, the Copyright Act did not expressly say dancing to music for commercial gain is infringement on the music, but it forbids unauthorized performance of the work in public, unauthorized distribution for commercial purposes and production, performance and publishing of any translation of the work. So I’ve deduced that a dance performance to music in public or for commercial distribution without authorization from the author(s) of the musical work is infringement and dancers will owe royalties.
Now most musical authors are not aware that this is infringement; most still don’t know that broadcasting their work in public (Radio, TV or Loudspeaker) without authorization is infringement, so it is expected that an average person will find it odd for an artiste to sue a Dancer. The artistes that are aware of this are too flattered to care; they enjoy the popularity it brings them which gives them fans, fans mean shows and shows mean MONEY.

In the event where the Song Owner records and broadcasts the dancer’s performance without authorization there’ll be a tangle of rights. In one scenario, if the Dancer performs to the music without authorization, she cannot turn around to sue the song owner for infringing on her performing rights, because, He who seeks equity must do Equity and He who comes to Equity must come with Clean Hands.
However, where the Dancer performs to the song with full authorization, but the song owner records and broadcasts without the dancer’s authorizations the Dancer can sue for infringement.

In a Commissioned Work or Work for Hire, most people argue that the person who hires (or Commissioner lol) should own the work, especially since in most cases either the Dancer executes the Hirer’s ideas or works according to his preferences. Some other people argue that the person who hires merely leases the work from the author, and the use should be limited.
However, Nigerian Law strikes a balance. The Copyright Act provides that;

…where a work is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship the Copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under the contract.
AND
…persons shall be deemed to be co-owners if they share a joint interest in the whole or any part of a copyright; or if they have interest in the various copyrights in a composite production, that is to say, a production consisting of two or more works.

In many cases of Unauthorized Intelletual Property Exploitation, most infringers usually claim they are giving the Intellectual Property Owners free exposure so they ought not to pay any royalties. This is very rampant with unauthorized Folklore Expressions. One common phrase for this is “Cultural Appropriation”.
Cultural Appropriation is the adoption of elements of a culture for commercial purposes without giving due credit to the originators of the culture and using it out of context or in a way that diminishes its meaning.
In answer to the question “Can a Dancer perform an expression of Folklore for Commercial Purposes?” the Nigerian Copyright Act states that; “Expressions of Folklore are protected against performance when such expression is made either for commercial purposes or outside their traditional or customary context”, but it also provides exceptions to the rule;

  1. Fair dealing for private and domestic use, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its source.
  2. Utilisation by way of illustration in an original work of an author, provided that; the extent of such utilisation is compatible with fair practice.
  3. It’s source shall be indicated in an appreciable manners and in conformity with fair practice, by mentioning the community or place from where the expression utilised has been derived.
  4. The expression shall not be in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates.

So as long as a Dancer properly acknowledges the source in a manner conforming with fair practice without hurting the dignity or cultural interests of the community, she can perform an expression of Folklore without authorization from the Nigerian Copyright Commission.
But Wait!!! This answer begs another question; What is Fair Practice? (Or Fair Dealing or Fair Use).
Nigerian Copyright Law, although it provides Fair Practice as a defence to the infringement of Folklore does not define what it is; leaving it to individual judicial interpretation.
In the popular 1972 case of Hubbard v. Vosper Lord Denning writing the leading judgment for the court said;

“It is impossible to define what is “fair dealing”. It must be a question of degree… next you must consider the proportions… But after all is said and done, it must be a matter of impression. As with fair comment in the law of Libel, so with fair dealing in the law of Copyright. The tribunal of fact must decide.”

RIGHT TO CLAIM AUTHORSHIP

I have already established earlier in this article that when Video Vixens or Foxes create original Choreographic Works they are authors of Literary Works. The Copyright Act further establishes their right to claim authorship in Section 12 which provides;

  1. The author of a Work in which Copyright subsist has the right- (a) To claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts referred to in Section 6 of this Act except when the work is included accidentally when reporting current events by means of broadcasting. (b) To object and to seek relief in connection with any distortion, mutilation or other modification of any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation
  2. The rights referred to in subsection (1) of this section are perpetual, inalienable and imprescriptible.
  3. For the purpose of this section “author” includes his heirs and successors in title.

The personal (Fundamental) and Intellectual Property Rights of a Video Vixen or Fox are all enforceable in Nigerian Courts. Only the Federal High Court has original jurisdiction to try Intellectual Property matters subject to appeal to higher courts, but Fundamental Rights can be tried at both High Courts and the Federal High Court.

In Kanari’s story, he can sue for the infringement of his Privacy and Image Rights and breach of Implied Contract. However, although he can claim authorship and first ownership of the choreographic work, for a Work for Hire he cannot claim royalties; as an Author he is entitled to a remuneration which he got from the Video director.

In an ideal scenario he should have signed a Simple Contract with the Director expressly stating that he would offer Stunt Double Services for a specific fee. That way it would be easier to prove a breach of contract.

Thank you for reading the Long Answer! You can get the short answer on;

Streaming Platforms
1. Audiomack: https://t.co/I7OaFVAsTY

Subtitled Version

  1. YouTube: https://youtu.be/PLaIWs60eLg

Cheers!

Temlari Jane

@tj_gaps

DISCLAIMER

The content of this article is for general informational purposes only and shall neither constitute legal advice nor an agreement for legal services. Under no circumstances does the content of this article establish or create, directly or indirectly, an attorney-client relationship between you and the writer.

Tags: No tags

Add a Comment

Your email address will not be published. Required fields are marked *