Introduction
Music is a global form of communication that allows artistes to express themselves using numerous literary, figurative, and artistic expressions. Some of these expressions may include figures of speech aimed at comparing a subject to another or expressing the artist’s preference for a brand or a subject.
But where a lyric draws a direct comparison between competing brands, especially in a way that favours one and disparages the other, the impact can go beyond artistic flair. One brand may enjoy the unearned glow of endorsement, while another risks reputational harm. For example, Burna Boy’s City Boy subtly positions “jekonmo” against “Azul” and champagne, implying a quality gap that listeners may internalise.
That said, name-dropping brands in song lyrics has become a cultural currency. Whether it is to reference luxury, lifestyle, or taste, artistes frequently mention brand names in ways that influence public perception. While many such references are complimentary, others can be damaging, comparing competing brands or suggesting inferiority.
This raises a pertinent legal question: To what extent can an artiste reference or critique a brand in a song without infringing on that brand’s legal rights? This article considers the intersection of trademark law, defamation, artistic freedom, and brand protection, particularly in the context of Nigeria and comparative jurisdictions.
FREEDOM OF ARTISTIC EXPRESSION
Expression as a right is enshrined in section 39 of the Constitution of the Federal Republic of Nigeria. Albeit guaranteed and protected, this right is not absolute. Like other rights, certain restrictions exist to limit the extent to which one can express oneself. An artist’s freedom to express themselves artistically may be limited by various factors. For instance, the National Broadcasting Commission has the autonomy to sanction what songs are aired on various broadcast channels in the country. Similarly, the constitution will restrict this freedom for the protection of public safety, order, morality, health, and the rights and freedom of other persons.
As much as an artiste enjoys his right to freedom of artistic expression, a brand or an entity also enjoys the right to enjoy dignity and an untainted reputation. Where the artiste expresses themselves in a way that taints a brand’s reputation and dignity, such expression may constitute defamation. In such cases, the law attempts to strike a balance between artistic freedom and the protection of commercial reputation. While satire, parody, or critique may be permissible forms of expression, malicious or false representations that damage a brand’s goodwill may give rise to legal liability.
TRADEMARK AND BRAND PROTECTION
Since brands and entities have a distinct identity, the area of law that safeguards a brand’s reputation is trademark law. A trademark refers to a sign, logo, colour, name, or expression that helps identify a brand and distinguish it from others. The core protection of a trademark on a brand is goodwill. Goodwill reflects the positive reputation a brand builds with its customers over time. It is closely linked to a trademark, which helps consumers identify products or services they trust. When a customer buys a product, likes it, and continues to buy from that same brand, that loyalty reflects goodwill. The trademark becomes a symbol of both the product’s quality and the brand’s reputation, and goodwill is seen in how willing people are to keep choosing that brand.
To benefit from the exclusivity that comes with trademark protection, a brand must be registered. Without registration, a brand owner can not enforce any rights that the law provides for trademark holders. For instance, if a beverage company uses a unique name and logo but fails to register them, another company could adopt a similar identity, potentially misleading consumers or using the brand in a manner which is inconsistent with what the brand represents itself as. In such cases, the original brand may struggle to claim infringement because it lacks formal registration to establish exclusive rights. This stresses the importance of registration before anything else; it empowers a brand to take legal action when its identity is misused or damaged.
DEFAMATION AND BRAND DISPARAGEMENT
A brand’s reputation is more than just an asset; it is often the foundation of its commercial success. Where an artiste references a brand in a song in a manner that implies inferiority, ridicule, or misconduct, it raises the legal concern of brand disparagement or defamation. While artistic expression enjoys constitutional protection in the Constitution, this protection, as emphasised earlier, does not extend to false and injurious statements that damage another’s reputation.
Defamation encompasses any false communication that lowers the reputation of a person or entity in the estimation of right-thinking members of society. In the commercial context, it is actionable where such a statement discredits a brand, reduces consumer trust, or causes financial harm.
When an artiste publicly releases a song that unfairly targets a brand and suggests, for instance, that a rival product is “cheap,” “fake,” or “inferior”, such expression, if false and injurious, may satisfy the elements of business defamation, which are:
- A false statement concerning the brand;
- Publication to a third party (in this context, the public release of a song suffices);
- Harm to the brand’s reputation or goodwill; and
- Resulting financial loss.
This extends beyond direct insults; even innuendo or implication, such as comparing one product unfavourably with another without a factual basis, may qualify as defamatory if it discredits the brand’s business standing. Though artists may defend their work as parody or opinion, courts have recognised that such defences do not apply where the statements are presented as fact and cause actual damage.
In a digital age where music lyrics spread rapidly across streaming platforms, social media, and online commentary, the reputational risk posed by negative brand mentions in songs is amplified. Businesses must be proactive in monitoring how they are portrayed in popular culture, and artistes must be cautious that their creative expression does not cross into unlawful territory.
COMPARATIVE ADVERTISEMENT AND CREATIVE COMMENTARY
In advertising, comparative advertising involves referencing or contrasting competing brands, often to highlight the superiority of one over the other. Per the Nigerian Communication Commission Guidelines on Promotional Advertisements, 2023, comparative advertisement is generally permissible when done fairly and truthfully. However, it becomes unlawful when the comparison is false, misleading, or disparaging.
While these principles are clear in traditional marketing, they are less so in the creative space. Artistes are now cultural influencers whose words shape perception. A single lyric may uplift a brand or diminish its credibility. Where a song contrasts two brands, it may inadvertently constitute comparative advertising, especially if one is portrayed as inferior.
Taking again the reference in Burna Boy’s City Boy, the lyrics may go beyond personal preference and imply that Jekonmo is substandard. Even in the absence of factual proof, such an implication may affect public opinion and trigger legal consequences.
Although our legal framework does not specifically address comparative references in Music, existing doctrines under trademark law, defamation are applicable. Artistes must therefore recognise the commercial weight their words carry, and tread carefully when referencing or comparing brands in their music
COMPARATIVE PERSPECTIVES: Insights from The US & UK
While different jurisdictions approach artistic references to brands differently, the need to balance creative freedom with the commercial and reputational protection of brands is consistent.
United States
In the United States, the First Amendment protects artistic expression while the Lanham Act protects trademark rights. Section 1125(c) prohibits the use of famous trademarks in ways that dilute or tarnish their reputation and value, even if there is no consumer confusion.
Courts apply the Rogers v. Grimaldi test, which permits use of a brand in an artistic work unless it:
- Has no artistic relevance, or
- Explicitly misleads consumers about source or sponsorship.
In the United Kingdom, Section 10(3) of the UK Trade Marks Act 1994, prohibits use of a sign that takes unfair advantage of or is detrimental to the reputation or distinctiveness of a registered trademark, regardless of whether the use is on similar goods or services, i.e. Liability may arise even where there is no consumer confusion, provided the use is commercially damaging and unjustified.
IMPLICATIONS FOR ARTISTS, RECORD LABELS AND BRAND OWNERS
As brand references become more frequent in music, the legal and commercial risks increase. All players in this light, artistes, record labels, and brands must understand that the intersection of creative expression and brand identity carries both opportunity and liability.
For Artistes:
Artistes must recognise that their lyrics influence public perception and that this influence comes with responsibility. A lyric that disparages a brand could result in legal action, especially if it leads to reputational or financial harm. Seeking legal review before releasing content with brand references is advisable. While freedom of expression remains a fundamental right, it does not shield artistes from claims of defamation or trademark infringement, especially where the brand is identifiable and the statement is false or injurious.
Record Labels:
Record labels play a key role in content vetting and release. Where a label approves or promotes music containing potentially defamatory or disparaging brand references, it may be joined in legal proceedings. Thus, Labels must treat brand references with the same level of caution as they would treat sampled music or interpolated works. This includes conducting legal risk assessments during pre-release review, and in some cases, requiring artistes to obtain consent or provide disclaimers where necessary.
Brand Owners:
Brand owners must be proactive in monitoring how their brand is portrayed in music and digital media, especially by influencers and artistes with broad reach. Where a brand is disparaged in a song, the business should act promptly by issuing cease-and-desist letters, requesting takedowns, or pursuing legal action where warranted.
However, brand owners must also be strategic. Not every mention warrants litigation. In some cases, brand responses through public relations or counter-marketing may be more effective than legal redress. Nonetheless, where a false or damaging comparison occurs, particularly one that reaches a wide audience or affects market perception, businesses should assert their rights under the law, especially where goodwill and consumer trust are at stake.
CONCLUSION
Brand mentions in music are no longer just fleeting artistic choices; they have become powerful cultural tools capable of shaping public perception and influencing consumer behaviour. In some cases, these references are celebratory and commercially beneficial. In others, they may cause significant reputational harm, especially where a brand is portrayed as inferior or mocked in a way that impacts its market value.
The law does not seek to stifle creativity. However, it does recognise that freedom of expression, though constitutionally protected, must coexist with the rights of others, particularly the right of businesses to protect their name, goodwill, and public image.
For artistes and labels, the key is to remain conscious of the legal implications of brand references in their work. A casual lyric could lead to claims of defamation, trademark infringement, or brand disparagement if it crosses into commercially damaging territory. Similarly, brand owners must remain vigilant and respond strategically when their brand is referenced in music in ways that could cause harm.
As music continues to influence consumer behaviour and brand perception, the weight of a lyric extends far beyond the studio. Artistes, record labels, legal advisers, and brand owners must all play their part in ensuring that the harmony between creativity and commercial respect is maintained.
By:
Mopelola Muibi-Hammed,
Associate.