How P-Unit lost bid to make KCB pay Sh30m in dispute over ‘Weka Weka’ song

This assignment was part of Coke Studio Africa, the music series that assembled a powerhouse ensemble of African musicians and producers to create magic in the studio.

The blueprint was simple. Musyoka was to hand over the beat to Burna Boy, who would embed his lyrics and, just like that, a new club banger would be born.

The following morning, rapper/singer Francis Amisi aka Frasha strolled into Decimal Records studio and triggered a strong urge in Musyoka.

Musyoka felt he needed one more professional opinion before handing the beat to Burna Boy.

But as Frasha gave it a listen, Frasha's body locked into the rhythm and without missing the beat, he began to freestyle. "Weka, Weka… Weka, Weka…"

That spontaneous moment changed everything.
Frasha soon rallied his P-Unit bandmates Gabriel Kagundu (Gabu) and Boniface Chege (Bon-eye) and together they seized the beat, transforming it into the explosive club anthem “Weka Weka”.

That hit song is now set to be the subject of a Court of Appeal case pitting P-Unit against KCB Bank and Scanad Kenya Ltd, with the eventual outcome expected to further define boundaries in the ever-evolving intellectual property space.

Aside from writing and performing another masterpiece, the Kenyan band had just hijacked a beat intended for one of Africa’s biggest stars, and made the move worth it.

At the time P Unit was riding high on a string of successes, making them among the country’s most bankable artistes on account of back-to-back hits that attracted attention across Africa.

“You guy” and “Mobimba” were among P-Unit’s tracks ruling the airwaves when the band released “Weka Weka” on December 15, 2014.

It was an instant sensation, topping charts and dominating playtime in clubs across the country. Certainly one of the year’s biggest anthems.

Five years later, P-Unit stumbled upon a commercial titled ‘Weka Weka na KCB M-Pesa’ airing on TV, radio and social media platforms. To them, the commercial was uncomfortably familiar as it reminded them of their hit song.

And just like that, a legal battle in the intellectual property space was born.

For the past six years, P-Unit has been locked in a bitter court battle with KCB Bank, demanding Sh30 million in what the band felt was its pound of flesh for alleged theft of the “Weka Weka” banger.

In May 2019, “Weka Weka” was still enjoying heavy rotation on local radio stations. The song had clocked over 600,000 YouTube views – a remarkable feat back then.

To P-Unit, KCB should have secured a custom licence for the song and wordings of the ‘Weka Weka na KCB M-Pesa’ commercial, grounding their claim on Kenya Copyright Act requirements.

The group accused the bank of brazenly reproducing their work by interpolating the chorus of “Weka Weka”, specifically targeting Frasha's iconic opening verse that had become embedded in the national consciousness, “Mi huu Weka Weka, Weka pesa kwenye benki kisha nacheka…”

P-Unit’s argument was that their song had turned the words ‘weka weka’ into a household phrase, and that the lender pounced on that popularity to craft the commercial.

Gabriel Kagundu, better known as Gabu, argued that "all Kenyans who are interested in music can confirm that 'Weka Weka' reminds them of a song by P-Unit. Any member of the public who knows our song would be misled into believing that we endorsed the advert. They sought to profit illegally from the popularity of our song".

On May 29, 2019, P-Unit sent a demand letter to KCB Bank, asking that the advert be pulled down from all platforms to allow for negotiations on compensation.

The bank did not respond directly. Instead, Scanad Kenya Ltd (named as the second defendant in the suit), the agency contracted by KCB, replied by denying the group’s allegations.

Interestingly, the same response from Scanad also proposed a meeting with P-Unit.

During that meeting, Scanad offered to contract P-Unit for two upcoming advertising projects and concerts, and requested the band to name its price for the proposed project.

However, the musicians turned down the offer, arguing that it failed to address the alleged copyright infringement at the heart of the dispute.

On June 13, 2019, P-Unit wrote to Scanad and KCB, demanding Sh30 million compensation for the alleged copyright infringement.

Scanad’s lawyers reached out to P-Unit five days later, requesting the band to suspend any legal action pending instructions from the agency.

Shortly afterwards, Scanad’s lawyers sent a second letter to the band stating that KCB had in August, 2011 – three years before P-Unit’s hit song was released – run a campaign dubbed “Weka Weka” and that the commercial was a continuation of the promotional campaign.

P-Unit filed a suit on July 3, 2019, suing KCB Bank and Scanad. The band argued in the case that the 2011 campaign did not feature any jingle and that the band’s grievance was specifically with the song and words used in the commercial.

In its defence, the bank argued that the only overlap between P-Unit's “Weka Weka” hit and its “Weka Weka na KCB M-Pesa” jingle was the word 'Weka' itself, a common Kiswahili term that no artist could claim exclusive ownership of as it is a word from a language and cannot be copyrighted.

Furthermore, KCB maintained that the musical elements of its jingle from the beats, genre, rhythm and P-Unit's track were fundamentally distinct, two entirely different creative works that just happened to share a single, everyday word.

On the similarity of the musical loop used in both creative work, the bank argued that the loop is a common one which is available in ‘music sample packs’ for musicians to use often for a fee or even free.

In her recent judgment, Lady Justice Josephine Wayua Wambua Mongare dismissed P-Unit’s claim, holding that there was a contradiction in testimonies given by Gabu as the first witness, Frasha as the second witness and producer Musyoka as the third witness.

“On the music element used in the adverts PW 1 (Gabu) states that beats can be copyrighted by the ones who created it, but PW 3 (Musyoka) admitted that he sampled the beat for the song from elsewhere. PW 2 (Frasha) differed and stated that a beat cannot be copyrighted and that the beat to their song is not unique, and was not created by them. PW 1 and PW 2 also admitted that the beat, tempo, time signature, rhythm, melody, chord progression, arrangement of the structure and genre of their song and those in the adverts were different,” the judge pointed out.

The judge further explained her reasoning delivering her technical analysis, comparing the two musical works side by side.

“From the above evidence and having listened to the plaintiff's song and the impugned defendant's adverts in court, it is my finding that the two compositions are not similar in very many aspects. When two musical works have different beats, melodies, chord progression, arrangement, structure and genre, it is unlikely, at least from an intrinsic sense to be considered similar or infringing on each other's copyright. As these elements are fundamental to determining musical similarities and copyright infringement,” the judge held.

Justice Mongare concluded that even as an ordinary listener stepping outside the legal jargon to assess the works as any regular person would, she could not discern any resemblance between the two works.

“It’s for these reasons that I answer this issue in the negative that the plaintiff’s song and the defendant’s advert are not similar.”

“Having found that the plaintiff's song and the defendant's advert are not similar in the intrinsic and ordinary sense, I find that there is no basis to hold that the defendant infringed on the plaintiff's copyright. There was no evidence of copying as the major aspect of the two musical works substantially differ, including the plaintiff's song having sampled beats, which is a non-protectable element as they are not original,” the judge added.

P-Unit is moving to the Court of Appeal, dissatisfied with Justice Mongare’s findings.

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