In the recently decided case of Wanjiku v Christ is the Answer Ministries (CITAM) & another [2025], the High Court awarded Wanjiku, the plaintiff, Ksh.1.5 million, in general damages, for infringement of her copyright in the song titled ‘Rungu Rwa Ihiga’, as shared on YouTube. From the judgement, the plaintiff claimed that CITAM’s rendition titled ‘Athuri Mwihithe’, as sang and performed by their Men’s Chorale and shared on YouTube, is substantially similar to her original composition in terms of lyrics, melody, and rhythm (particularly the segment running from minute 2:43 to 6:13).To support her claim, the plaintiff produced a Certificate of Registration of a Copyright Work No. CR.000475 dated 26th January 2011 in respect of the audio and visual of her song, which made for prima facie evidence of authorship and ownership of the work pursuant to Section 22A(3) of the Copyright Act.¹

In their defence, CITAM, asserted that the plaintiff’s song “Rungu Rwa Ihiga” lacked originality and incorporated elements, specifically the phrase “Rungu Rwa Ihiga,” that were common Christian references in the public domain, thus requiring no authorization for their use². They contended that their song “Athuri Mwihithe” was an independently created composition, with their witness even testifying that the lyrics were derived from the Book of Exodus 33:21–23³. Furthermore, they argued that any overlap with the plaintiff’s song was merely incidental, appearing only briefly and not as a dominant element in their six-minute song.⁴ The defendants also claimed their actions were not willful and denied having uploaded or distributed the plaintiff’s work without consent⁵. They pointed out that the plaintiff only began publishing her work on YouTube in 2020, after the suit had commenced, and that other entities had used the song previously without objection⁶. Additionally, they asserted they were unaware of any copyright claim, suggesting the song was a piece of folklore widely and customarily performed at Kikuyu events⁷. Finally, the defendants emphasized that their use of the song was non-commercial, intended solely for ministry and spiritual edification, rather than profit-making.⁸

Judge F. Mugambi, in determining this matter highlighted and addressed the following three issues; (1) whether the defendants infringed the plaintiff’s copyright; (2) whether the defendants’ defences are sustainable; and (3) whether the plaintiff is entitled to the remedies she sought.⁹ Firstly, regarding copyright infringement, the court found that the plaintiff held a valid copyright in “Rungu Rwa Ihiga” based on her Certificate of Registration, which constituted prima facie evidence of authorship and ownership that the defendants failed to rebut¹⁰. The defendants’ song “Athuri Mwihithe” was deemed a deliberate and unlawful appropriation of the plaintiff’s work, as the defense witness conceded that the lyrics in the impugned portion were identical and the tune was substantially similar to the plaintiff’s composition, creating an unmistakable impression of copying¹¹. The defendants’ claim that their lyrics were directly derived from scripture was also disproven, as the cited verses did not contain the lyrical structure or language used¹².

Secondly, concerning the defendants’ defenses, the court rejected the argument of “incidental inclusion” because the copied material, spanning over three minutes and conveying the core message, was deemed substantial, prominent, and expressive, not casual, inessential, or merely background¹³. The defense that the song was “folklore” was found to be unsubstantiated by evidence¹⁴. Furthermore, the plaintiff’s YouTube publication date was deemed inconsequential to copyright ownership or infringement, as her ownership was secured from earlier registration¹⁵. The non-commercial nature of the defendants’ use for ministry purposes also did not negate liability for infringement¹⁶.

Lastly, the court determined that the plaintiff was entitled to the remedies she sought¹⁷. Despite the plaintiff not providing evidence of lost income and the defendants’ non-commercial use, the judge awarded KShs. 1,500,000 in general damages to vindicate the plaintiff’s rights, affirm copyright principles, and deter similar violations¹⁸. A permanent injunction was also issued, restraining further infringement, and the defendants were ordered to take down and destroy all copies of the infringing song¹⁹.

Against this background, this blog will explore the concept of copyright infringement, with a particular focus on the common practice in many Kenyan churches of incorporating songs by other gospel artists into their praise and worship sessions, which are often live-streamed and later uploaded to the churches’ YouTube channels.

What is copyright infringement?

Section 2 of the Copyright Act defines infringement as any act which violates a right protected by the Copyright Act.²⁰ There are two types of rights awarded through copyright, these include economic rights which allow the rights owner to derive financial reward from the use of their works by others; and moral rights, which protect the non-economic interests of the author,²¹ such as the right of attribution and the right to integrity.

In the case of songs (musical works, sound recordings, and where applicable audio-visual works i.e. music videos), the economic rights protected by copyright include the right to reproduce, translate, adapt, distribute to the public, and communicate to the public the whole work or a substantial part of a given work.²² As such copyright infringement would be the doing of any of these acts without the permission of the right holder, whether there is monetary gain to the infringer, or not.

To determine whether there is infringement, first, one ought to establish whether there is copyright in a respective work. To qualify for copyright protection, the following three requirements must be met:²³

1. Eligibility: Works must fall under any of the classification of works eligible for Copyright protection, provided for under section 22(1) of the Copyright Act, to be protected. These works include literary works; musical works; artistic works; dramatic works; audio-visual works; sound recordings; and broadcasts.

2. Originality: Works must be original meaning that the author must have used enough effort and skill to create them. Copyright does not protect an idea itself but the expression of the idea in a physical form, for example in a book, song, computer program, etc.

3. Affixation: The work should be presented in any physical form provided the work can be identified, reproduced, or communicated through a device. Such devices can be paper, cardboard, computer, disc, etc.

Copyright protection is automatic once an original work is attached to a physical format,²⁴ and does not require registration or other formalities. Therefore, a copyright owner can still exercise their rights and claim damages in the event of a violation without registration. ²⁵A registration certificate, however, provides evidence as proof of ownership, which was the case in the matter highlighted above; and it is often advisable for owners to register their works, as it speeds up the process of enforcement.²⁶

Upon establishing whether there is copyright in a respective work, one can assess whether there is violation of any of the rights awarded by copyright against the respective copyright holder. Section 35(4) of the Copyright Act provides that infringement of any right protected under the Act shall be actionable at the suit of the owner of the right and in any action for infringement, the infringed party is entitled to reliefs from a court, including²⁷:

1. Damages – compensation for the harm that occurs due to an infringement.

2. Injunction – a court order to restrain or prevent further use by the infringer.

3. Destruction Order – a court order for the destruction or other reasonable disposal of all infringing copies of a work.

4. Declaration of Ownership – a determination by a court as to who rightfully owns the infringed works.

5. Anton Piller Orders – a court order that permits a copyright owner to enter the infringer’s premises to seize and keep records, data, documents, and materials relating to their copyrighted works.

Notably, the wronged party is the one who has to prove that they are the owner of the infringed works and demonstrate what the infringing actions were.²⁸

As a defence there are exceptions to copyright protection, which are provided for under the Second Schedule of the Copyright Act. Copyright exceptions are instances where the use of copyrighted work is not considered an infringement even where the permission of the owner has not been obtained, and includes the right to control²⁹;

1. Fair dealing acts for scientific research, private use, criticism or review, or reporting of current events.

2. Doing the acts (economic rights) by use of parody (funny imitations), pastiche (art that imitates previous work), or caricature (exaggerated pictures).

3. The right to quote.

4. Any use made of a work for a judicial proceeding or of any report of any judicial proceeding, etc.

5. The reproduction and distribution of copies of an artistic work that is publicly displayed, including where such work is included in an audiovisual work or broadcast

6. The incidental inclusion of a copyright work in an artistic work, sound recording, audio visual work or broadcast;

7. The public or broadcast reading of a reasonable part of a published literary work that acknowledges the author.

The above list of exceptions is based on the fair dealing principle, which allows one to use other people’s copyright material if the use is ‘fair’ as identified by law. Moreover, the Copyright Act provides specific exceptions for educational institutions, libraries and archives, and broadcasting institutions.³⁰

Looking at the case, and applying the discussion above to the case, in determining whether there is infringement, the court first established the plaintiff’s valid copyright in “Rungu Rwa Ihiga” through her Certificate of Registration dated January 26, 2011, which serves as prima facie evidence of authorship and ownership under Section 22A(3) of the Copyright Act.

Moreover, as one of the defenses that was argued out, the claim of “incidental inclusion” under paragraph 1(f) of the Second Schedule to the Copyright Act was dismissed because the copied material was not genuinely peripheral or unavoidable. The judge clarified that “incidental” means “casual, inessential, subordinate or merely background”. However, the defendants’ use, spanning over three minutes and conveying the core spiritual message, was deemed substantial, prominent, and expressive, not subordinate or background, thus falling outside the exception.

Therefore, in its determination, the court was right in ruling in favour of Wanjiku as there was infringement and the defenses were unsustainable.

What does this mean for churches in Kenya?

In an era where digital platforms are central to ministry outreach, many churches in Kenya have embraced livestreaming and uploading their praise and worship sessions on platforms such as YouTube, which often incorporate songs by other artists (gospel), and highly likely without explicit permission or licensing arrangements.

As such, this decision by the High Court could set an important precedent regarding how copyright law is interpreted and enforced in the context of religious institutions, particularly where performances are broadcast or made publicly available online. Therefore, as we await the potential impact of this decision on the gospel ministry space, churches may consider taking proactive steps to align their worship practices with copyright law. This could include seeking appropriate permissions and/or licenses, partnering with Collective Management Organizations (CMOs), and fostering awareness among worship teams about intellectual property rights and obligations. Additionally, churches should consider properly crediting the original artists when using their music and including clear disclaimers in video descriptions or during broadcasts to acknowledge that the music performed is not their original composition. While this does not replace the need for seeking permission and/or licensing, it reflects good faith and respect for the creators’ rights.

In other jurisdictions, such as the United States, the law provides for the religious services exemption under section 110(3) of the US Copyright Act of 1976, which provides that, among others, the following are not infringements of copyright for churches: “performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.”³¹ The religious services exemption allows a church to be exempt from copyright infringement when performing copyrighted worship songs during its religious gathering at a place of worship. However, the recording, broadcast, or transmission of a performance at a worship service is not exempt under the religious service exemption.

Additionally, based in the US, there is a global organization (founded in 1988 in Oregon, U.S.) that provides copyright licensing solutions specifically for churches and Christian organisations known as Christian Copyright Licensing International.³² The organization “… empowers affordable and legal expression of worship by simplifying access to songs, resources, and media. Through licences, content, and worship-focused applications, CCLI and their partners enable discovery and champion the authorised use of copyright works, whilst ensuring artists and owners receive fair compensation.”³³ Its services are available in select regions; in Africa, it is currently active in South Africa.

In conclusion, rooted in the spiritual and communal nature of worship, there has seemed to be an unspoken social contract that makes the use and performance of other artists (gospel) songs in church permissible. However, as churches increasingly operate in digital spaces, this informal practice comes into tension with formal copyright obligations, raising critical questions about ownership, permissions, and the scope of legal exceptions. As such, there is a need to remain vigilant, and take deliberate steps to ensure legal compliance.

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