Music, photos can land you in big trouble
The news of the complaints of the music group Wakadinali (above) and artiste Nonini is an indication that the rampant practice of blatant copyright infringement continues unabated.
What you need to know:
- Over the past few weeks, the Kenya Copyright Board has issued advisories on the use of sound recording (music) and responsible use of memes.
- It was hoped that the advisories would inform commercial decisions in corporate bodies.
- Similarly, the issue of ‘Sina Maoni’ photographs raises many copyright concerns as well.
Several issues concerning copyright have enjoyed media prominence and better coverage in the recent past showing an increased awareness and assertiveness by copyright owners.
Over the past few weeks, the Kenya Copyright Board (Kecobo) has issued advisories on the use of sound recording (music) and responsible use of memes.
These elicited robust conversations. It was hoped that the advisories would inform commercial decisions in corporate bodies.
Similarly, the issue of ‘Sina Maoni’ photographs raises many copyright concerns as well.
Unfortunately, the news of the complaints of the music group Wakadinali and artiste Nonini is an indication that the rampant practice of blatant copyright infringement continues unabated.
Kecobo reiterates that the use of a sound recording in the background of a film, an advertisement or similar audiovisual works is deemed as synchronisation.
Regardless of the length of the portion used or the source of the music, such use must be cleared by the copyright owners as per the previous Kecobo advisory on the matter.
The advisory can be found on the board’s website www.copyright.go.ke.
Licensing contract
A copyright owner is supposed to offer a licensing contract authorising the manner and boundaries of the use of their work, accompanied by a fee.
It is the responsibility of the agency dealing with such films or adverts to clear the sound recordings used or commissioned for the recording of original jingles.
Failure to do so carries an enormous reputational and financial risk to the principals that hire the agency, even with well-drafted indemnity clauses.
While the financial implication of failure to obtain synchronisation rights will be determined by the courts based on the claims in a civil suit, in most cases, the media through which the advert was released and the territorial coverage will be key factors to consider.
A delayed response to a request for withdrawal of the offensive work may weigh against the offending party, hence additional costs.
In the case where the jingles are commissioned, the principal of the ad agency would, in most cases, own the copyright to the resultant jingles.
On the matter of the viral photograph of the person lining up to vote, later dubbed the ‘Sina Maoni’ guy, the question of who owns the work and can, therefore, benefit from it arose due to the quick merchandising on offer, especially in social media.
The media house whose reporter interviewed the voter would be entitled to copyright the footage and its derivative works, including photographs.
The subject of a photograph does not own the copyright to it—unless they commissioned the photographer to take it.
However, it would be near impossible for the media house to merchandise the photograph due to privacy issues arising from the use of someone’s image—even if no issue of image rights arose, as in the case of celebrities and sportspeople.
Clearing music or commissioning for jingles at ad agencies must be done as a matter of course.
And the principal entity must ensure that it is done before the advert is released to the public.
Mr Sigei is executive director, Kenya Copyright Board. [email protected].
