Church choirs that perform songs sung by other artistes and then upload the content online have been put on notice through a recent High Court verdict.
In that decision, Kikuyu gospel artiste Rebecca Wanjiku walked out of the courtroom with an order that Christ is the Answer Ministries (CITAM) should pay her Sh1.5 million for using her song “Rungu Rwa Ihiga” as part of a collection of songs sung by its choir.
Rebecca also came out with the order that CITAM should immediately delete from its Men's Chorale YouTube channel the performance that included her song.
The court found that the CITAM men’s choir incorporated the lyrics from Rebecca’s song in their mix called “Athuri Mwihithe” which was uploaded on YouTube in May 2015. The court found that the choir not only replicated the lyrics but also the rhythm that Rebecca had used.
Reading through the 21-page verdict, issued by Lady Justice Freda Mugambi last Friday, the following emerge as the main arguments raised before the judge.
To prove her ownership of the song, Rebecca produced a certificate from the Music Copyright Society of Kenya (MCSK) that she got in January 2011 regarding the song “Rungu Rwa Ihiga”.
“[The certificate] affirms that the plaintiff is the author of the song ‘Rungu Rwa Ihiga’ and that she enjoys the exclusive rights conferred by law, including the rights to reproduce, distribute, and publicly perform the work,” the judge noted.
Rebecca noted that the version of the song is substantially similar to her original composition “in terms of lyrics, melody, and rhythm”.
“According to her, these similarities are not coincidental but instead indicative of deliberate copying and adaptation of her work without authorisation,” the judge stated.
Rebecca presented before the court a flash disk containing both songs, and they were played during the hearing.
“There is no doubt that [CITAM’s] piece is a combination of gospel songs performed in the Kikuyu language. The plaintiff identified the allegedly infringing segment as running from minute 2:43 to minute 6:13 of [CITAM’s] track. She further submitted an English translation of this segment, stating that the words therein mirror her original lyrics verbatim,” the court noted.
Rebecca told the court that she had sent a “notice to produce” to the church on October 28, 2020, where she asked the church to give her the video of the song. The court notes that the church did not comply with that notice and did not “offer any explanation for their failure to do so”.
One of the responses by the church was that they did not “lay any claim to authorship or ownership” of the song. The church’s witness, Isaac Peter Kalua, also conceded that the lyrics in the said section resembled those used by Rebecca.
Mr Kalua testified that the lyrics in question were derived from the Biblical book of Exodus 33:21 23. However, the judge weighed the Bible verse side-by-side with the song and found that it was not a direct lifting of the verse.
“Even if [CITAM] and [Rebecca] drew inspiration from similar biblical themes, what is protected is Rebecca’s particular arrangement of lyrics, rhythm, and musical structure. The repeated use of identical lyrics and a substantially similar melody over a significant portion of [CITAM’s] song creates the unmistakable impression of copying, rather than independent creation,” the judge noted.
“[It] also asserted that the plaintiff’s song is a piece of folklore that has been performed widely in various functions and versions within the Kikuyu community,” the judge said.
“However, beyond the bare assertions made in their pleadings and testimony, [CITAM] did not produce any evidence to support this claim. No witness was called to testify to the song’s alleged traditional or communal origin, or to demonstrate that the song predates [Rebecca’s] authorship or exists in the public domain,” she added.
Moreover, the judge noted, all who had used the song in their renditions had credited Rebecca as the author.
“A mere assertion that a song is widely performed in a particular language does not, without more, displace a claim of authorship supported by formal registration and uncontroverted testimony. I therefore find the defendants’ claim that the work constitutes folklore to be unsubstantiated and legally untenable,” ruled Justice Mugambi.
The church also argued that Rebecca had uploaded her song on YouTube in 2020, whereas their mix had been there since 2015.
However, the court said the timing of the YouTube upload “is irrelevant to the question of whether infringement occurred”.
The church also noted that it does not sell its songs and that it was not out to derive any commercial value from the song but for “ministry and spiritual edification”.
“By dint of the Copyright Act, the existence of a profit-making motive is not a prerequisite to establishing infringement. What matters is the unauthorised use of exclusive rights conferred upon the copyright holder,” she said.
While settling on Sh1.5 million as the amount of general damages that Rebecca was entitled to, Justice Mugambi noted that there were no particular guidelines on the sum to be awarded. She noted instances where courts have awarded as high as Sh5 million in similar matters.
“Considering the facts and circumstances of the present case, including the uncontroverted finding of infringement, the non-commercial use by the defendants, the failure to disclose relevant digital evidence, and [Rebecca’s] assertion of moral and proprietary harm, I am of the considered view that an award of Sh1.5 million is appropriate and proportionate to vindicate [Rebecca’s] rights,” the judge ruled.
The judge also ordered CITAM to shoulder all the expenses Rebecca had incurred in prosecuting the case.
Regarding the removal of the video, the judge stated: “An order is hereby issued directing [CITAM] to take down from all platforms, and to destroy any copies, records and or performances of the song titled ‘Rungu Rwa lhiga’ under the title ‘Athuri Mwihithe’ or any other title, within seven days from the date of this judgment.”
