Thread by @senamisomoyo

It’s #IPThursday with your Favourite Lawyer again!

Yesterday (1 July) was International Reggae Day, so I thought I’d do a thread on Bob Marley and one of the most controversial Copyright cases in the music industry.

The star of our show today is one of the greatest artists to ever live, Robert Nesta “Bob” Marley. You already know him, Marley was born in Nine Mile, Jamaica in 1945 to a black mother and a white father. (This will be relevant later.)

Although his father provided financial support, he was always away and Marley was raised by his mother as a single parent. It was in his early childhood years that Marley developed a love for music.

In 1963, at the age of just 18, Marley, together with his friends, Bunny Wailer and Peter Tosh founded the band “The Wailing Wailers”. They would later be known as just The Wailers.

The Wailers became an established trio on the Jamaican music scene. Their reggae sound incorporated elements of blues, soul and rock. What made reggae music in particular so popular was the “one drop” style to the instrumentals (where the snare and drum drop on the same beat).

The Wailer’s grew in popularity with Marley often taking leads in the songs. It was during this period that Marley switched from Catholicism to Rastafarianism. This carried through in the lyrics in the music they were writing.

In the early 70s, The Wailers signed for Island Records and started working with a man named Chris Blackwell. They released the album “Burnin” which featured the hit song “I shot the sheriff”.

Chris Blackwell decided that it would be easier to promote the band in Europe to white listeners with Marley, who was of mixed race and light skinned, as the lead singer. This alienated the other members, in particular, Peter Tosh.

Tosh was unhappy about being the background vocals and also that Marley’s songs were chosen over his more radical material. He left The Wailers in 1974 and went solo but remained bitter towards Marley after this. The Wailers became known as Bob Marley And the Wailers.

Tosh’s lyrics would be more radical and militant, whilst Marley would preach peace, love and unity. He carried a guitar shaped like a rifle, condemned slavery openly and this made European markets almost fear his style. Naturally, Marley became the global star.

Marley is one of the greatest selling artists of all time. His songs “One Love, Redemption Song and Three Little Birds” some of the most exploited songs in history. His music came at a time when a lot of African countries were gaining independence from colonial powers.

So it carried messages of hope and upliftment for black people.Reggae artists were among the first to incorporate political activism in their songs. It is often said that Marley is the reason a lot of people converted to Rastafarianism worldwide and listened to reggae music.

In 1977, Marley injured his toe whilst playing football. Later on, doctors discovered that he actually had cancer which was spreading from his toe up through his body.

There are many conspiracy theories on this, some say because of his growing influence on African countries, the west intentionally infected him with cancer to stop him spreading his messages of uprising and unity.

Despite his illness he went on tour, performing at the Zimbabwe independence celebrations in 1980, however his health deteriorated thereafter.

Bob Marley died in 1981 at the age of 36. Leaving behind his wife Rita and a football team of kids (seriously he had 11 children).

After his death, his estate which included his Intellectual Property was left to his heirs. This included the rights to his music and image rights. Both have been the subject of heated legal battles. I’ll start with the music, I‘ll do a thread on the image rights another time....

Marley’s family created the Fifty-Six Hope Road Music company which would administer the commercial aspects of his estate. This included managing trade marks and making sure royalties were paid whenever the music was used by 3rd parties.

The company does this by using a whole bunch of collecting agencies worldwide. Thats kinda what SAMRO does here in SA. When a song plays in public, collecting agencies collect royalties and pay them to the artists.

Back to our story. Remember when Bob Marley And The Wailers signed for Island Records? Well those deals are what I call “Exploitation 101”. At the time Marley little commercial interests, he just wanted to make music. He didn’t care much about money, just the message. Island knew

In short the deal was like this: During the 70s Bob Marley entered into 3 agreements with Island records (which is now owned by the Universal Music Group (UMG).....

He was to perform exclusively for Island, produce albums for them and money paid to him in advance by Island would be offset against future royalties paid to him. In short, Island would take Royalties from the songs to make up for its investment. It continues...

Marley would have access to Island’s studio and they would also recover the costs of “letting” him use studio from the royalties. Marley could write the lyrics, but Island could reject a song or album if they wanted to, or if they felt it had “no commercial potential”.

The albums recorded under these agreements contain 5 of Marley's most famous songs, “Get Up, Stand Up”, “I Shot the Sheriff”, “Three Little Birds”, “No Woman, No Cry” and “One Love”. Thats really his core list of hits!

To say these songs are famous, is an understatement. They appear in adverts and even movies. UMG had decided to license the rights to Marley’s music to a whole lot of companies for money without consulting his family or giving them royalties. Three Little Birds especially.

One of the biggest issues however was the licensing of the songs to cellphone companies for use as ringtones. With the dawn of cellphones people wanted their favourite songs to play when the phone rang (some still do!😂). Marley songs were in demand and UMG knew this.

UMG entered into many licensing agreements with cellphone companies, broadcasters, advertisers and others to use the songs at a huge fee, without paying Marley’s family.

Marley’s family took UMG to court in the US. The basis was that they had failed to pay them royalties due to them for all the use of the songs after he died. They argued that in terms of US Copyright laws, the rights to the royalties in the music should have went to his heirs.

The next part was a bit hard for me to breakdown, so I hope y’all get it. Before we get into it, you must first know the distinction between an Author of a work and the Owner of the work in Copyright Law. So light your spliff and pay attention....

The author is the person who creates the work, the owner is the person who owns it. You can be an author, without being an owner. eg. Journalists write all articles and the newspapers own the IP. This is because they are employees and the work is deemed to be “Work For Hire”.

Now, US Copyright law allows you to register Copyrighted works like you would with trade marks. Whereas in SA for example, Copyright subsists automatically as soon as you make it and there’s no need to register.

The US Act provided that you have to renew Copyrighted works after 28 years from when you make it. Failure to renew, then the protection would lapse, regardless of who owns the copyright in the work at the time.

They changed this in 1978. So any work made after this date, doesn’t have to be renewed. Marley’s songs were before 1978. So his family argued that after 28 years, when the Copyright in the songs would have come up for renewal, royalties should be paid to the author’s estate.

UMG fought back and said that the songs recorded by Marley, in their studio, during this period were what are referred to as “Works For Hire”. Meaning UMG had hired Bob Marley to record songs for them. Not for himself. Laugh with me!

So even if Marley wrote and performed the songs, UMG said they were the actual “legal authors” at all times. This would mean that even after 28 years, UMG would keep ownership of the songs as the original authors. UMG could then do whatever they wanted with the songs.

So the judge had to decide whether Marley was the author of the songs or if it was UMG. Judge Cotes in a district court in New York started off by saying that there is a difference between the dictionary meaning of author and the legal meaning of author.....mmmmh.....

He then went on to say that in the case of a “work for hire”, the definition of author extends to the employer. So the next question was, do Marley’s songs qualify as works for hire? He said Yes. Which meant that UMG were the authors and owners of the songs the whole time.

They were allowed to license the song to different people without consulting the Marley family. He went on to say that the Act created an almost irrebuttable presumption that any person who paid another to create a copyright work was the ‘author’ under the ‘work for hire’ rule.

His reasoning for this was:

1.Island records had paid Marley in advance.

2. the Marley agreements had so much control over production and Island records could reject a song should they wish.

3. This much control indicates the existence of an employment relationship.

And so the case of the Marley Family v Universal Music Group was dismissed on this basis. UMG could continue commercially exploiting the song as they wish. I disagree with this judgement. I do think Marley is the author even in the legal definition. I am biased of course....

My view is that one cannot claim any authoriship of a work unless they contribute to the creative process. They can still be an owner. Island had creative power to reject ideas. But Marley was always at the helm of the creative process. However, I’d love to hear your thoughts!

Marley didn’t care much about money and I feel Island records took advantage of that when he signed the deals. The implications of this decision are incredibly harsh when it comes to Artist vs Studio relationships.

Big Lesson: Beware of bad deals. In the Agreement: We’ll let you record at our studio=In the Law: We can own the IP afterwards.

“The Babylon System is a vampire, suckin the blood of sufferers” -Bob Marley”.

Stay safe good people!!!❤️💛💚

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