Copyright infringement has once again become an issue of concern in the Kenyan music industry. Recently, Wakadinali, a Kenyan music group, claimed that the copyright in one of their songs known as ‘Geri Inengi’ had been infringed. The group claims that Brian Mutinda, a social media influencer, synchronised the Geri Inengi song to a video in which he was marketing KCB Bank Kenya Limited’s (KCB) products. The Wakadinali group claimed that this synchronisation was done without a license or permission from them.

In summation, the Wakadinali group on 29^th June issued a demand letter through their advocates alleging that Brian Mutinda created a short video to market the products of KCB for financial gain without the permission of the Wakadinali group. They sought for both parties to take down the videos from their social media platforms, issue a public apology, as well as to admit liability. However, Squad Digital Limited (the agency), an advertising agency KCB had contracted, averred that their client was not in breach of any copyright as the work was in line with the Instagram application’s terms of use.

Further, the agency requested a private meeting but did not honour this commitment. In response, Wakadinali, through their advocates, raised a raft of legal contentions that this blog will endeavour to explore. The Wakadinali group sought for private deliberations with all the stakeholders involved but this did not bear fruit resulting in them going public on their Twitter platform.¹ It would be prudent to provide the legal provisions, applicable to this matter, on what rights are protected under copyright, before exploring the copyright infringement claims.

What is copyright and what constitutes copyright infringement?

Copyright protects an author who has created an original, tangible piece of literary or artistic work. It is a form of intellectual property that creates a bundle of exclusive rights to a legitimate right holder to manage the work in a way that is accepted under the law.² The author of a piece of musical work refers to the person by whom the arrangements necessary for the creation of the work are undertaken.³ In addition, the author of a sound recording refers to a person who makes the arrangements for the sound recording.⁴ These definitions are fundamental because in this instance, the Geri Inengi song is a musical work as Wakadinali are the creators of the work as composers. Further, it could be classified as a sound recording where the copyright owner is the music producer, which could be Wakadinali. Thus, the copyright that exists in the production of these works provides the owner the exclusive right to control the use of the work.

Copyright infringement involves the use of protected works without the prior legal consent or authority from the copyright holder.⁵ This also extends to synchronisation i.e the use of musical works in an audio-visual work. Here, this act looks a lot like Brian Mutinda adding the Wakadinali’s group song ‘geri inengi’ onto a video. Noting that copyright protection is automatic, non-registration of any copyrighted work or the absence of other technical formalities is not a bar for any claim of copyright infringement by the author of the work.⁶

Section 22 provides a list of these works including literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings, and broadcasts.⁷ Some of the rights that accrue to copyright owners under the Kenyan copyright legal regime are economic rights, moral rights, and other related rights.⁸

Generally, music has copyrights that exist in two types of work. This is the copyright existing in the composition of a song, and secondly the copyright in the recording. Thus, in the case of musical or sound recording works, an owner of the existing copyrights may assign or license out their rights to third parties.⁹ Notably, in this present case, the Wakadinali group did not assign or license any such rights to Brian Mutinda. However, the contention from the agency is that these rights were licensed through Instagram’s terms of use. Though, according to Instagram’s terms of use, ‘nothing in [their] terms constitutes any authorisation by [them] for any use of music on any of [their] products’.¹⁰ The terms go further to stipulate that musical works on their platform cannot be used for commercial or non-personal use.¹¹

Noting further, as part of their response to the agency, the Wakadinali group contends that the only way corporate Instagram accounts can use a recording artist’s work is if the work is an orphaned work.¹² This is a term that is used to describe copyrighted work whose author, or otherwise rights holder is unidentified or difficult to ascertain.¹³ In addition, the other way is through a creative commons licence. Creative commons licenses can be used to defend against copyright infringement. Creative commons licence work within copyright law by allowing authors to give permission to the public to use their work in specific ways.¹⁴ In this case, it can be argued that the agency would be able to freely use the song if Wakadinali group had offered a creative commons licence on its song. This licence permits the use of specific copyright works for specified purposes and requires attribution to the original author.¹⁵

Ordinarily, Mutinda’s actions of using the musical work of the Wakadinali group in a private capacity, that is, not for any remuneration or economic gain, would not be construed as a breach of copyright in Kenyan law or reference to Instagram’s Music use guidelines. This is because there exists no restriction on such private use on the Instagram application. Meta, the platform that houses Instagram, does not permit the use of music for ‘commercial or non-personal use’ unless you possess a licence.¹⁶ Moreover, the Copyright Act permits personal use of copyrighted work under the second schedule. However, as a direct consequence of branding related to KCB bank that appears in the video, an argument can be made that the bank and Mutinda by extension were benefiting from the musical work. This is buttressed by the fact that the bank proceeded to repost the same. They did so by advertising their goods and services thus exceeding the initial private capacity it was being used under.¹⁷ In fact, the Wakadinali group, through their advocates, contend that Mutinda’s actions were tantamount to unauthorised synchronisation of the Geri Inengi song.

Synchronisation and the case for Wakadinali group

To get a synchronisation licence, one needs to have it issued by either the composer or publisher. A synchronisation licence in this instance would enable the inclusion of musical works in audio-visual works.¹⁸ Thus, with a lawfully obtained synchronisation licence, music may be lawfully added to a video in the nature of Mutinda’s. Therefore, because Brian Mutinda and the agency had not obtained this licence from Wakadinali, as alleged by Wakadinali, Mutinda would be in violation of copyright law.

Any commercial action of using the musical work, Geri Inengi, in an audio-visual piece of work without this sync-licence could be detrimental to the Wakadinali group. This is because without the author having prior knowledge of how the music is intended to be used, it has the potential to affect the author’s moral rights. Consequently, the musical work may damage their reputation or seem as if they have a particular inclination if the musical work does not match their image. This was what Sauti Sol contended in a similar case.¹⁹ Having this in mind, the agency on behalf of Mutinda should have applied for a synchronisation licence from Wakadinali directly or through their appointed representatives.

Conclusion

It is always advisable that a person or legal body should endeavour to undertake due diligence before undertaking any sort of action that may have legal ramifications whether knowingly or unknowingly. Generally, the Wakadinali group possesses the right to institute a civil suit against parties who without their express authority unlawfully use their work for commercial gain. In the present case, however, two key issues could be brought before a court of law. The first is whether the use of the ‘Geri Inengi’ song in Brian Mutinda’s video, and later reposted by KCB Kenya was tantamount to unauthorised synchronisation, and commercial use. The second is whether the interpretation of Instagram’s terms of use extends to rights that would ordinarily be granted with a synchronisation licence. It would be interesting to read how a court interprets the law and rules on similar issues of social media influencing and copyright infringement.