now everyone and their mother must have heard the song “This is
Nigeria” by Nigerian rapper, Falz the bahd guy.

song, a take on “This is America” by his American counterpart –
Childish Gambino, has generated quite a bit of controversy in academic and
non-academic circles, thus the need for this article.

artistic quality of the song and video will not be discussed, you can contact
me for my thoughts on those; I will only focus on its legal issues. I will also
address that of the DMW and Davido assisted “Mind” song. Let’s begin.


first thing we must realise is that every nation has its own copyright law, and
that such laws are not in isolation. What this means is that a nation’s
copyright law is (ideally) in tandem with international (intellectual property)
treaties that the nation is a signatory to.

number of these treaties exist, each with different provisions. But they all
have central themes, or what can be termed as core principles.

is a signatory to some of these treaties, the most important being the Berne
Convention of 1886. The US, the other country of interest in this article, is
also a signatory to this Convention. The provisions of this treaty (and others
as well) are meant to serve as a guide to the signatory countries in the
formulation of their own copyright laws, using the treaty provisions as the
minimum standard that should be implemented in theirs.

the local front, Nigeria has her own copyright law which was enacted in 1988
via a Decree (No. 47). This law has among its provisions, the core principles
stated in the Berne Convention. One of this principles is that of reciprocal
protection, which encourages a country to give works made by foreign authors or
published in foreign countries, the same protection it gives to works by its
own nationals. This principle is contained in section 5 of our Copyright Act,
and it protects such works where the country of publication is a signatory to
the same treaty that Nigeria is a signatory to.

the US, this same reciprocal-protection provision exists in their 1976
Copyright statute, but the crucial provision to this discourse is that
contained in section 115, which deals with “covers” and their
attendant licences. In a nutshell, this provision states that a musician who
wants to “cover” or do an interpretation of another’s song, need not
obtain permission from the original author; but if that musician’s
“cover” is intended for commercial purposes, then the musician must
pay the author of the original some royalties/percentage on each copy of the
“cover” sold. This percentage is already set by the law. No such
provision exists in our Copyright Act.

is Nigeria”

question here (and in law, most importantly) is: what is Falz’s “This is
Nigeria”? To answer this, we must first state what it isn’t: “This is
Nigeria” is not an original song. Why? Because the music (the beat) to
which the rapper raps on is an exact copy of that which  the American
rapper, Childish Gambino, raps on in “This is America,” the original
and that which preceded “This is Nigeria.”

what then is it? Under the law (US copyright law) and in music culture, it can
be only be one of 2 possible things: a cover or a parody. These 2 categories
each have their implications.

“cover” as we have seen is a kind of defence recognised under the US
law, and is defined as a work which does not alter the “basic melody and
character” of the original (section 115).

parody, meanwhile, is another defence to copyright infringement in both the US
and Nigeria’s (see the second schedule to our Copyright Act) copyright laws. On
this (parody), I will rely on the US legal jurisprudence, as ours is
unfortunately grossly lacking in this and many other areas. There, a parody has
been interpreted by the courts as a work which takes the vital elements of an
original work and uses it to either comment on that work or for comic relief.
This the court held in the Campbell v Acuff-Rose Music, Inc. case [510
US 569(1994)], which was a case involving an infringement of the song “Oh,
Pretty Woman” originally composed by Roy Orbison, by the rap group
2LiveCrew. Curiously in this case, the crew when sued claimed the defence of
parody, and not that of a cover. And the court (the Supreme Court) ultimately
upheld their parody defence, stating that their rendition of the song,
qualified as a parody.

these 2 concepts, I believe that “This is Nigeria” can only fall
under the “cover” category. One, because Falz’s version does not in
any way ridicule or comment on Gambino’s “This is America”; it does
the opposite of ridiculing: it comments on topical issues in the Nigerian
society, and two, in hip-hop and music culture in general, when an artiste
takes a beat (music) of another artiste and does an interpretation of it,
either using his own lyrics or that associated with the original, such a song
is termed a “cover.” In Mr Falz’s case, his “This is
Nigeria” had his own lyrics on the same music (beat) that Gambino’s
“This is America” did.

now know that Falz’s “This is Nigeria” is a cover (under US law and
music culture in general), what then are the implications?

we have seen, in the US, the implication is that royalties must be remitted to
the author of the original where the cover is for commercial purposes.

questions thus emerge: (1) is Falz’s “This is Nigeria” a commercial
work? and (2) would this US cover-licence provision apply in Nigeria? To answer
the first, I will first have to answer the second.

US cover-licence provision (section 115) cannot apply to Nigeria. This is
because section 5 of our Act (mentioned above) provides that the protection
offered to works by foreign authors or works published in foreign countries, is
that which is offered to works by nationals. And in the Nigeria Copyright Act,
there is no such protection that provides for “covers” or their
licences, or fees for such licences. Hence, such a protection cannot be offered
to foreign works/authors, due to its non-existence.

the Nigerian Copyright Act does not recognise “covers,” what then is
“This is Nigeria” under the Act?

put, “This is Nigeria” is a copyright infringement. It is an
infringement of Mr Gambino’s “This is America” song and video. This
infringement can be seen by the provisions of section 6 (2) of the Copyright
Act. Section 6 (1) provides for the rights (right of reproduction,
distribution, publication etc.) which authors of various works (literary,
musical, artistic, and film) enjoy, and subsection (2) of that section further

doing of any of the acts referred to in subsection (1) of this section shall be
in respect of the whole or a substantial part of the work either in its
original form or in any form recognisably derived from the original

(italics mine for emphasis)

provision is clear enough. So then the question is if both works, “This is
Nigeria” and “This is America,” (their songs and videos) are
placed and viewed side-by-side, can “This is Nigeria” be said be to
have been “recognisably derived from the original”? No? You must
either have not seen/heard “This is America” or you are just a
die-hard fan of Mr Falz. Either way, you would be still be wrong. “This is
Nigeria” is clearly (in the music/beat, the melody, and the video) derived
from the original work – “This is America.”  This is thus the
protection that will be offered to Gambino’s “This is America” under
section 5 through the provision of section 6 (2).

the second question of whether “This is Nigeria” is a commercial
work, there are several layers and ways to look at it.

we have stated that our Copyright Act makes no provision for a
“cover,” cover licences, or their fees; and thus “This is
Nigeria” isn’t one (under our law), and Mr Gambino will not be able to
recover from Mr Falz on that ground. But our Act provides an author of a work
the exclusive right of performing the work in public, and broadcasting or
communicating it to the public. See section 6 (1) (a) (iii) and (vii) of our
Copyright Act. And through section 5 (our reciprocal-protection section), works
by foreign authors, in this case “This is America” by Childish
Gambino, are granted these same rights. Thus, Childish Gambino has the
exclusive rights to perform his song “This is America” in public and
broadcast/communicate it to the public. And any one, other him, who performs
either the whole or a substantial part of his song “either in its
original form or in any form recognisably derived from the original”

will have infringed on this his exclusive right. It is thus in Mr Falz’s
exercise of these 2 rights granted to Mr Gambino that will determine the commercial
nature or otherwise of his “This is Nigeria.”

to the best of my knowledge, Mr Falz did not put the song up for sale upon its
release, so from that it can be said that the song was not for commercial
purposes (but then, how many Nigerian artistes put their songs up for sale upon

real test I believe is from the performance and  broadcast/communication
of the song.

performance, if Mr Falz performs the song (with the music) in public at any
event he is contracted to perform, he will have infringed on Mr Gambino’s
exclusive right of public performance. And if he is paid for those
performances, then it can be rightly said that the song is indeed meant for
commercial purposes.

where radio and TV stations play the song (and Mr Falz acquiesces to such plays
by keeping mum), he and these stations will have infringed on the broadcast
rights of Mr Gambino. This too will show that the song was created for reasons
other than ‘patriotic’ ones. For Mr Falz knows that royalties will accrue to
him for plays of the song (and others) at the end of the year from the
Copyright Society of Nigeria (COSON), our performance rights organization.

another clear sign of the song’s commercial nature is the fact that a video was
created for it and put up on YouTube. Those familiar with the YouTube model
know that YouTube puts up adverts on your channel after your video attains a
certain number of views, and subsequently pays you for the advert(s) placed.
So, the more views you have on your videos, the more likely you are to have
adverts placed on it, and the more money you make. As I write this, “This
is Nigeria” has 5.8 million views and counting. I just wonder why YouTube
hasn’t taken it down yet….This could be because (1) Falz credits Gambino and
(2) as at when l viewed the video last, there are no adverts attached to it.

conclude on Mr Falz and Mr Gambino, we can succinctly summarise that:

the works of foreign authors have copyright protection under our copyright law
(section 5)

this protection is given to those works published in countries/by authors
residing in such countries that are signatories to the same treaty as Nigeria

the US and Nigeria are signatories to the same treaty (the Berne Convention)

“This is America” by Childish Gambino is an original work published
in America and whose author resides in America

“This is Nigeria” by Falz the bahd is not a “cover” under
the Nigerian Copyright Act

“This is Nigeria” is a work that infringes on the rights (given by
our Act) of Childish Gambino in his work – “This is America”

“This is Nigeria” may or may not be commercial work, depending on
some factors and circumstances.

will not be able to state here the ways in which Mr Gambino can seek redress
for this infringement as that is another topic deserving of its own article.


Mr Falz’s “This is Nigeria,” the Davido and his DMW affiliated song –
Mind – is pretty much straight forward, as it does not pose the question of it
being a “cover” or not. It’s an original song. And in that
originality, lies a most blatant piece of copyright infringement you will ever
hear anywhere.

infringement is in the song, “Caught Up” by the American artiste,
Usher Raymond. This song was released sometime in November 2004 from Mr
Raymond’s 2004 Confessions album; and almost 14 years later, it was
resurrected to be blatantly and shamelessly copied by Davido and his

part copied/reproduced, and now performed, distributed, broadcast and
communicated to the world is the hook/chorus in the Usher song. It goes thus:

so caught up,

me feeling, caught up,

don’t know what to do,

got me losing my cool, caught up…”

the Davido song, he and each one of  his DMW crew, sing those exact same
words (and in the exact same melody sung by Usher) of Mr Raymond’s “Caught
Up” chorus as the bridge leading to the main hook in their
“Mind” song. The boldness of this infringement left me embarrassed
and flabbergasted at the same time; I just couldn’t believe what I was hearing.
The gusto with which they sang it was simply incredible. But then I wasn’t too
surprised as this is Nigeria, isn’t it?

same section 5 (analysed above) of our Copyright Act will apply to this
instance of copyright infringement. As it involves a work published in a
country (US) and by an artiste resident in that country, which is signatory to
the same treaty (the Berne Convention) Nigeria is a signatory to. Also, the
infringement is not in doubt as it clearly violates the exclusive rights
granted to the author (Usher in this case) under section 6 of the Act.

unlike Falz’s “This is Nigeria,” whose commercial nature is in doubt,
that of “Mind” is not. The song was released as a single to a
forthcoming album by Davido’s DMW crew. Thus, Usher will be entitled to not
only damages for the infringement, but also whatever profits the single has
made and will make.

only possible defence that Davido and his DMW crew may have is that of lack of
knowledge provided for under section 16 (3) of our Act. But that defence may
not hold water in court, as I am pretty sure Davido and his crew must have
heard the Usher song when it came out 14 years ago and thus aware of its
existence, because it was a hugely successful and popular song in the US and
the world. I for one did hear it when it came out that year (and I am not that
old). And in the unlikely event that this defence should succeed, they would
still be liable to give Mr Raymond an account of profits made from the song
(see section 16 (3) of our Copyright Act.)

above is in the assumption that Davido didn’t seek Usher’s permission for the
use of his and the writers’ (Jason Boyd, Ryan Toby, Andre Harris and Vidal
Davis ) “Caught Up” chorus.

he did, then all the accolades and more go to him.


addition to the 2 cases of infringement mentioned above, other alleged
instances of copyright infringement have occurred this year. The cases of
Simi’s “Joromi” and Tekno’s “Jogodo” come to mind. What is
worrisome and ironical is that in all these cases the alleged infringement is
being done by the artistes themselves: people who should know better and whom
the Copyright Act seeks to protect.

then could be the reason for this?

I am
tempted to say that ignorance of the law is the major reason for this problem,
but I refuse to believe that. Because apart from the fact that these artistes
must have some basic knowledge of copyright law, they (the A-list ones) have
professionals working with them who do know more about these laws and their
applications and implications.

this is the case, and I believe it is, the only reason why such cases of
infringement occurs is because the artistes decide to take the risk (especially
where the work copied is a foreign one), despite this complicit knowledge. This
decision might seem a good one in the artistes’ eyes as their only concern is
in getting that hit song (enter “Mind”), but it is a myopic,
expensive, and quite frankly, foolish decision.

is myopic in the sense that, unknown to the artistes, such decisions to
infringe set an example for other artistes (budding and established), and
creates a false  impression in the music industry that copyright
infringement is okay, and without consequence. This impression creates a
culture of noncompliance with copyright law, and further weakens the machinery
of the already weak copyright system. If artistes are the ones flagrantly
breaking copyright law, what hope does the system have?

impression is what Davido and his crew have created (if they didn’t take
permission) by using that aspect of Usher’s song in their “Mind”
song. With Falz, to be fair, he (on his Youtube channel) calls his “This
is Nigeria” a cover and also credits Childish Gambino. Still, the rate and
manner at which these cases of infringement are occurring is a cause for

such infringement decisions are in the long run, expensive. This is
because when (that day is coming) a person is sued for such infringement and
wins, the amount that the infringer will pay as damages, attorney fees, costs
etc. will be far outstrip the gains made from the decision taken to infringe on
that person’s right.

should be the ones aggressively promoting and protecting copyright laws and the
system. They are the ones with the largest stake in it, and not doing so or
doing the opposite is worse than suicidal.

A 2000-plus
word article is more than enough for the wise.

remain a Minister in the Temple of Justice.

Attoh Esq.

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