Folks, I’ve got a lot on my mind, on a Friday, and so this post sort of matches the business and legal thoughts floating in my head; and those I’ll have to deal with later in the day. Let’s get to it.
A is a popular musician who creates music everyone loves and wants. B is an organization with ties and connections to the music industry. B, without consent and authorization from A, sells A’s music to C. C is a big communications company who proceeds to use 10songs it bought from B as ringtones. When C buys the songs from B, C makes B sign a “Content Provision Agreement” saying B essentially owns the copyright to the music and can license the work to C.
C moves on to execute and enjoy all the benefits that go with the acquired license from B. What happens? A, the musician, sees and hears his music being played and is upset. He sues C for copyright infringement. C says, “hey! we signed a contract with B who told us he could license the music and accompanying rights for a fee.” What should happen AML People?
Should C be held liable to A for copyright Infringement? You betcha. Under Kenya, Nigeria, Ghana and USA Copyright law, among others, C would still be held liable. As the saying goes, ignorance of the law is not an excuse. The above is the gist of the latest Safaricom Copyright infringement case. Folks, expect these kinds of legal battles in future. Content providers and content distributors will necessarily have to set aside the litigation budget for this.
If you are C and A can show proof that he never gave B permission to sell his songs in the first place, what do you do? You tell your lawyers to try to settle, immediately!
Artists, note that the Kenyan artist here would need an accounting from Safaricom to know exactly how much is owed to him. When someone infringes your copyright and sells your work nationwide etc., you have no way of knowing how many units have been sold unless you demand an accounting.
For my African lawyer colleagues, since I seem to get a lot of you all contacting me with questions, if you litigate (try) this case, would you push your client to go to trial? In the USA, the decision to settle is that of the client’s. An attorney can and is expected to explain the terms of the proposed settlement offer, but the client makes the final decision whether to settle. 90% of cases in the USA do settle.
The benefits of settling here is that A gets a nice chump of change and can negotiate Safaricom’s continued usage in exchange for royalty payments. If the Kenyan musician wants to make a difference, however, as a matter of principle, given the strength of his case, he can push forward to trial. This means should he win a favorable judgment, his case will become legal precedent for cases like his that will follow in future.
There are other legal teaching points here but I will stop here for now.
Have a great weekend folks and stay blessed.
- Mr Maina, popularly known as JB Maina, sued the firm for allegedly using 10 of his songs as ringtones through its “Skiza” and “Surf 2 Win Promotion”.
- The mobile operator has denied the allegations, saying that they signed a Content Provision Agreement with Interactive Media Services and Liberty Afrika Technologies, which are licensed by the Music Copyright Society of Kenya (MCSK).
- Mr Maina is demanding Sh5 million in damages in addition to any amounts due after accounting for the alleged illegal sale of his songs.
- Safaricom is further accused of engaging in piracy by reproducing, modifying, mutilating, and offering the songs for sale through downloading and subscribing after entering a code via mobile phone and the Internet.
- Safaricom has brushed aside Mr Maina’s claims, saying that all payments related to the download of his music were made to Liberty Afrika as per the content provision agreement.
- MCSK admits signing a content provision agreement with Liberty Afrika in 2009 assigning Safaricom rights, licenses, and sub-licences.
- Telecoms operator Safaricom is negotiating with a musician to settle a copyright infringement dispute out of court, Commercial Court judge Joseph Mutava was told on Tuesday.
“We are talking to amicably settle the dispute and we would require more time to reach a settlement,” Safaricom said through the firm of Ochieng’, Onyango, Kibet, and Ohaga Adocates.
The judge deferred the case to October 18 when the parties will record a settlement. Safaricom moved swiftly to calm the situation after Mr Mutava directed the Criminal Investigations Department and a copyright inspector to accompany musician John Boniface Maina to Safaricom’s headquarters in Nairobi and conduct an inventory of his songs.
Business Daily Africa has the full story.
- AML 149: Intellectual Property, Race and Unjust Music Contracts with Prof. Kevin J. Greene
- AML 148: The Business of Music in Ethiopia with Negus Alemu & Leyla Konjo
- AML 147: Meet Temi Adeniji, MD Warner Music South Africa & SVP, Strategy, Sub-Saharan Africa
- AML 146: Women in “Afrobeats” Music – Eva Alordiah, Weird MC, Joy Tongo
- AML 145: Burna Boy, Wizkid Grammy Wins & What it Means for Africa’s Music Industry