A film production company and pay TV operator Multichoice Kenya are embroiled in a court tussle over copyright ownership of a comedy film known as “Baba Twins”.
The company, Film Factory Limited, claims that its copyrights have been infringed through the production and airing of the film, which was produced by Moon Beam Productions Limited.
The legal dispute is premised on email correspondence alleged to have been sent by the director of Film factory Limited to a Multichoice employee in January 2018 giving a concept for the film.
In claiming originality of the “Baba Twins” comedy, which was the first Kenyan Showmax original film, the Film factory Limited alleges that in the said email the director gave a storyline, plot and concept of a film called "Houseband”.
Film factory Limited raises the issues of copyright infringement by Multichoice and Moon Beam Productions due to the similarity of the plots and storylines of the “Baba Twins” film and “Houseband”.
Film factory Limited says Multichoice has since released the film on its internet streaming platform Showmax.
The company claims that it is suffering loss of potential revenue that could have been gained from the production, airing, and release of the film.
But Multichoice says that it is not true that the company director’s idea was novel as at January 22, 2018 when he allegedly sent the email.
It states that other than the email correspondence, there is nothing presented by the company and its director to justify his claim that he has the copyright to the film.
“As a matter of fact, in 2015 a movie with a similar concept "House Husband" had already been produced in Nigeria. The same is currently on YouTube and has so far attracted more than 1.7 million viewers from all over the world,” says Multichoice in the court papers.
In the replying affidavit, Multichoice has also pointed out a detailed process leading to the admission of content for production by M-Net, an affiliate of Multichoce.
It says the process does not involve exchanging emails with its employees as they lack technical capacity and legal authority to approve those concepts.
Additionally, that since Multichoice Holding has thousands of employees all over the world, there is imminent danger in just using email correspondence as a basis for claiming a concept as this could open a pandora's box for all manner of claims.
Pending determination of the dispute, the company wanted court to issue various interim orders against Multichoice and Moon Beam Productions Limited such as barring them from marketing, airing, streaming or availing the comedy film through any platform or medium.
It also wanted court to compel Multichoice and Moon Beam Productions to avail and deposit in court documents and audiovisual materials, for purposes of determining the copyright issues raised in the suit.
The documents are a copy of the film known as “Baba Twins” film, any and all Showmax subscriber viewing data from all geographical regions around the world, for the film on all mediums of communication where the film has been aired, streamed or made available for general public viewing.
Also sought were statements of accounts in relation to the entire production budget of the film and its distribution.
The company also wanted the payments’ receipts, royalties, and licensing fees made to persons in connection with the concept, production, marketing and distribution of the “Baba Twins” film.
Its argument was that a storyline/plot can be said to fall under works similar to the works protected in the Berne Convention and Copyright Act.
Rejecting to grant the orders, Justice Abigail Mshila declined to grant the interim orders because there was no evidence of copyright infringement.
She said Film factory Limited did not present any proof of copyright as claimed although it had attached attached emails dated January 22 and 23, 2022 sent to Multichoice.
“Based on the material placed before this court the court is not satisfied that the Applicant has a prima facie case to warrant the grant of an injunction order. The Applicant has not demonstrated the substantial loss it is likely to suffer if the injunction is not granted,” said the judge.
According to Film factory Limited, there is the subsistence of copyright emanating from a reading of Section 22(3) of the Copyright Act in the sense that what was sent to Multichoice was a “literary work”.
Its argument is that writing and sending an email to Multichoice’s employee, is essentially a form of expression hence the company’s work is deemed copyrightable, in the fact that the idea was expressed through the email written by the director of the company and sent on a medium (email) to the employee of Multichoice.
