June 8, 2023

White Oak Advertisement Bacchanal

Angostura’s White Oak video advertisement for Carnival 2023 has recently been subjected to an allegation of copyright infringement. The advertisement features a re-recorded version of Explainer’s hit song ‘Lorraine’ performed by White Oak ambassadors Nailah Blackman and Voice. However, the soundtrack for the advertisement also samples the original opening of ‘Lorraine’, which Rawlston Charles claims he owns. This blog does not seek to establish a determination of liability , but will expose copyright issues raised by the scenario. It should also be noted that any views expressed here are limited to the information made available in the newspaper reports.

Issue 1 – Copyright works in play

It is important to note that any given song involves multiple copyright works. There are the lyrics (words), the melody(musical composition), the performance and the sound recording. All of these maybe owned/controlled by different persons and as such the use of a single song may require copyright permission from multiple entities. In the case of ‘Lorraine’, Henry Winston (Explainer) is listed as the writer, composer and performer and the song is administered by the music publisher Haka Taka Music. Furthermore,Winston is a member of COTT. Therefore, to use the song ‘Lorraine’ in a video, the synchronisation right would have to be cleared with the music publisher and/or the collective management organisation.

However, in the White Oak advertisement scenario, the issue does not relate to the use of Winston’s copyright works, but rather the use of the recording comprising the phrase “Taxi, Taxi. Airport Kennedy”, which Charles asserts ownership over. In this situation there are two copyright works at play, the sound recording embodying the saying of the phrase, and the phrase itself, which is potentially a literary work. From the newspaper reports, it is unclear whether Charles is alleging infringement of the sound recording and the literary work in the lyrics, or the lyrics alone. That being said, the law of copyright does allow for copyright protection to subsist in single lyrics given that literary works may include short extracts and titles provided they are original in the copyright sense. However, in the context of Trinidad and Tobago, the determination of whether copyright will subsist in a lyric is uncertain as the case of Full Blown Entertainment v Matthews stated that soca lyrics would have to involve an element of uniqueness. It is unclear whether this approach will be followed in future cases.

Issue 2 – Sampling vs Interpolation

The news reports of the alleged infringement in the White Oak advertisement have loosely used the concept of ‘sampling’. In copyright law, ‘sampling’ refers to the use of the actual sound recording. Therefore, ‘sampling’ should not refer to the use of lyrics because the re-recording of lyrics would amount to interpolation. ‘Interpolation’ for the purpose of copyright law involves a situation where a performer uses the lyrics of another in a new performance. In simple terms where the lyrics are re-sung separate and apart from the original recording. As such, Charles’ claim of infringement could relate to sampling if the actual sound recording was used, alternatively, if it was just the lyrics this would not be sampling, but rather interpolation. Use in either context may involve copyright infringement if no permission was sought.

Issue 3 – Role of COTT

The news reports contained allegations that COTT, the Copyright Music Organisation of Trinidad and Tobago, failed to assist Charles with addressing the issue of potential infringement. However, it is worth noting that it is not usually the role of collective management organisations (CMO) to assist with alleged infringements on an individual basis. CMOs would usually intervene where its collective repertoire is being used without a licence, for example where a party promoter fails to take the required public performance licence. Additionally, it is necessary to note that Rawlston’s claim that he owns the synchronisation right for the lyrics and/or sound recording would mean that COTT has no standing to intervene. CMOs like COTT can only administer the rights of its members and moreover, it would appear that even if Rawlston is a member, he reserved the right to grant synchronisation licences.

CMOs in Trinidad and Tobago have unfortunately been labelled with bad reputations. While there is significant room for improvement, in this instance the issue would appear to be unrelated to COTT.

Issue 4 – Parties with potential liability

Should this case of alleged infringement be escalated to litigation, the parties likely to be named as defendants/infringers could include the advertising agency and Angostura. The advertising agency is potentially liable for an act of reproduction by including the sound recording and/or lyrics without permission. Whereas, Angostura is potentially liable for an act of communication to the public by broadcasting the advertisement and making it available on the internet.

Issue 5 – Importance of due diligence

All things considered, this issue was entirely avoidable if the requisite due diligence was conducted. Even if a licence was taken to use the lyrics of ‘Lorraine’, a further licence would be required to use the sound recording embodying Rawlston’s part assuming he is indeed the owner. Alternatively, if the sound recording was not used and only the lyrics interpolated, it would be an open question for Rawlston to prove that he is the owner of the lyrics and moreover, that copyright subsists in it because Winston is listed as the sole composer and writer for ‘Lorraine’. Nonetheless, the advertising agency/Angostura should have investigated what rights exist in ‘Lorraine’ and who the potential owners were.

Similarly, the performers, Nailah Blackman and Voice, should also perhaps consider indemnifying themselves in the future to avoid any claims of infringement where they perform the works of a third party for another entity.

Clover® is well equipped to conduct such due diligence and we have indeed done this for several of our clients where the requisite contractual deals were negotiated and agreed to ensure there would be no infringement and moreover, amicable collaboration among all parties involved. Contact us today to manage your intellectual property portfolio.