Plagiarism in music: how costly can it get?

When famous musicians are ripped off or imitated, it is a gamble that can lead to costly lawsuits. Copyright laws are meant to safeguard original works, promoting creativity and rewarding innovation. However, finding the perfect balance between protection and inspiration is a delicate task.

In Uganda, copyright laws may not be as stringent as elsewhere, but local musicians are still feeling the pinch.

Some have paid hefty sums for copyright infringement, making it a costly affair.

And now, Gereson Wabuyu, popularly known as Gravity Omutujju, is in the crosshairs.

He is facing off against the administrators of the late Paul Kafeero’s estate, and the copyright law is closing in.

The administrators of the late Paul Kafeero’s estate, through Kibirige and Company Advocates, claim that Kafeero was the owner of the copyright and neighbouring rights to the artistic work/song Walumbe Zaaya, which was originally composed, sung and published in 1991.

The administrators of the estate are Thomas Kafeero and Elizabeth Nagawa.

Kafeero passed away on May 17, 2007, at the age of 36, due to complications related to kidney failure.

His untimely death was a significant loss to Uganda’s music industry, and he is remembered for his talent and lasting impact.

Documents obtained by New Vision reveal that in 2012, Omutujju, in collaboration with Pitaxon and Rinex Music Producers/ Productions, Kim XP Season 3 and Big Talent, reproduced, shot, performed and published a music video remix titled Walumbe Zaaya Rm without authorisation.

The remix, available on YouTube, features audio-visual elements, beats, lyrics and the voice of the late Paul Kafeero, infringing on the copyright and neighbouring rights owned by Kafeero’s estate.

According to the administrators, the acts constitute gross violations of copyright and neighbouring rights, including, but not limited to violation of the author’s moral and economic rights, unlawful reproduction and distribution of copyrighted work and unauthorised commercial exploitation of the late Kafeero’s intellectual property rights.

Sh2b for Kafeero’s song?

The administrators of Kafeero’s estate demand that Omutujju ceases and desists from performing, distributing or commercially exploiting the song Walumbe Zaaya Rmx in any form or platform.

They also demand that he immediately removes the duplicate copy of the song from all platforms and related channels where it has been uploaded. The lawyers also want their clients paid all proceeds from the illegal exploitation and use of the original work.

“Provide to us and our clients a full accountability statement detailing all revenues derived from the violations,” the lawyers from Kibirige and Company Advocates, demanded.

Celebrated musician Paul Kafeero passed away in May 2007 aged 36.

The lawyers also want their clients to be paid general damages worth sh2b for the violations committed over the years.

Omutujju is one of many musicians that have faced criticism over copyright laws worldwide.

What others say

John Kay (president of songwriters)

The family is very right to sue the rapper for copyright infringement because the artiste should have asked for permission to sample or re-mix the song. The song has been around for 15 years since it was remade.

My query is why is the family suing Gravity now and why have they waited for long?

Most of the cases I have known ended in out-of-court settlements. Gravity did not re-do the whole song, but just used the chorus, then used his own verses, which is fair use.

Tony Kakooza (intellectual property lawyer)

The sh.2b compensation the Kafeero estate wants will only be got if there is enough evidence that shows that Gravity actually got that money for the reproduction of the said song.

The amount of money the owner of the song wants is determined by how much money the artiste got in return from the song and it must be supported with documents, not hearsay.

Copy me, pay me

In August 2023, Airtel Uganda paid the price for using the song of Jamaican singer, Spence Garfield, popularly known as Konshens after the Commercial Court directed it to pay sh666m in compensation for infringing on copyright of his songs.

Justice Patricia Mutesi also ordered Onmobile Global Limited to pay sh30m as exemplary damages for copyright infringement, with a 10% interest from the date of the judgement until payment in full.

The court declared that by using and distributing Konshen’s songs as caller tunes without his consent, Airtel and Onmobile were jointly liable for infringement of the musician’s copyright in the said song.

The judge noted that Airtel and Onmobile’s distribution of Konshen’s songs without remitting the proceeds to the owner amounted to unjust enrichment.

In 2015, Konshens took legal action against Airtel Uganda, Onmobile Global Limited and MTech Communications as defendants, and Solunet Business Limited as a third party in the Commercial Court in Kampala.

Court held that the issue of not purchasing the songs is immaterial since they were recorded and uploaded for purchase. The court held that the defendants unjustly enriched themselves when they sold the suit songs without permission from the plaintiff and without remitting money that was generated from distribution.

Court documents show that the songs the singer claims to have authored and composed are; Simple Song, Gyal a Bubble, Mitan, Stop Sign, Jamaican Dance, Konshens Jazz version and Jah Love Me.

In February last year, the Commercial Court ordered MTN Uganda and the Federation of Uganda Football Associations (FUFA) to pay sh570.6m to Proline Soccer Academy over violation of its sports image rights.

High Court judge Stephen Mubiru ruled that FUFA erroneously granted MTN Uganda Limited the right to use the images licensed to Proline Soccer Academy Limited for five years, hence violating the academy’s image rights.

The court heard that MTN sponsored FUFA between the years 2007 to 2013. However, for the duration of that sponsorship, FUFA had erroneously granted the telecommunication company the right to use the images licensed to Proline, yet the agreement between it (FUFA) and Proline, had expired on September 8, 2008.

The judge noted that the conflict is between the copyright vested in the author of a photograph that was taken of the 11 participating players, and then used without their consent, but rather with the permission of FUFA, for commercial purposes of MTN Uganda on one hand, and the image rights belonging to the subjects of the photos, on the other.

In 2009, Cameroonian Manu Dibango (he has performed in Kampala before) sued Michael Jackson and Rihanna for having used one of his hooks, “mama-say, mama-sa, mama-coo sa” without his permission. Michael Jackson opted for an out-of-court settlement and the two artistes never let the public in on the finer details. However, later, in 2007, Rihanna asked Michael Jackson to use the same hook in her Don’t Stop the Music. Dibango sued her.

Last year, the Marvin Gaye estate lost a lawsuit in which Ed Sheeran was accused of copying his Grammy winning song, Thinking Out Loud, from Gaye’s Let’s Get It On. It was a very dramatic case, in which Ed Sheeran had to play the guitar in court to prove to the jury that he was innocent.

“These chords are common building blocks which were used to create music long before ‘Let’s Get It On’ was written and will be used to create music long after we are all gone,” he told court.

Earlier on, the Marvin Gaye estate had won a similar case against Robin Thicke and Pharell Williams. For the plagiarism, the singers were asked to pay $5m to the Marvin Gaye estate. Court found similarities between their Blurred Lines and Gaye’s Got to Give it Up.

In 2010, Shakira paid $400,000 (about sh1.4b) to Cameroon Presidential Guard group of 1984 for remaking their song Waka Waka without their permission. The parties reached an out-of-court settlement. The song was used as the official promotional song for the 2010 Soccer World Cup that took place in South Africa.

Copyright law in Uganda

Copyright and neighbouring rights protection in Uganda is regulated by the Copyright and Neighbouring Rights Act, No. 6 of 2006.

The Act provides for protection of literary, scientific and artistic intellectual works, computer programmes, electronic data banks and their neighbouring rights.

For natural persons, copyright is protected for the lifetime of the author and 50 years after his death. For corporations/companies, copyright is protected for 50 years after the date of the first publication. For anonymous work or works of unknown authors, the copyright is protected for 50 years after the work was first published.

Procedurally, when you want to protect your copyright in Uganda, an application for registration is made to the Registrar of Copyright at the Uganda Registration Services Bureau and an application fee of sh50,000 paid.

A copy of the work for which protection is sought must be attached, such as books, CD or DVD. The application is then published in the Uganda Gazette for 60 days.

If no objection is made to the registration of the said right, a certificate of registration will be issued to the applicant. No fee is charged for the registration certificate.

Additional reporting by Alfred Byenkya