Acclaimed rapper/vocalist Nyamari ‘Nyashinski’ Ongegu is locked in a court battle with a Nigerian music producer over a Tecno endorsement deal worth millions of shillings.
The Nigerian, Sam Are Eliapenda Jedidah, alias, Sam Eli Are, has moved to court accusing Nyashinski of copyright infringement by signing an endorsement deal with Tecno, the Chinese-based global smartphone company that is also listed as a defendant.
In court documents seen by Saturday Nation , Sam Eli accuses Nyashinski of using the hit song ‘Wach Wach’, which he produced the beats for, to promote and endorse Tecno Mobile’s latest device.
Eli states that as the producer of the song used in the Tecno commercials by Nyashinski, he is entitled to a percentage of the earnings made from the endorsement deal, but his effort to have what is rightfully his has proven futile.
Nyashinski bagged the multimillion shilling deal with Tecno in May this year when he was appointed the brand ambassador of their latest smartphone, Tecno Camon 20.
The Saturday Nation understands that the deal is to the tune of Sh12 million, even though this could not be independently verified. In the civil case number E617/2023, Sam Ali, a postgraduate student residing in Kenya, cites music production and composition as his hobby.
In the court documents, it says that sometime in 2020, Sam Eli was in the studio in Nairobi composing music when Nyashinski walked in. That was the first time the two met. At the time, Nyashinski was recording his then-album ‘Lucky You’ at the same studio.
The album was released that same year. Impressed by Sam Eli’s creativity, Nyashinski requested some beats from the owner of the studio (not mentioned in the documents) and a number of the Nigerian’s producer beats was sent to the Mungu pekee hit-maker as part of the batch.
“He picked out the beat originally titled Low_Tint_70 which the plaintiff (Sam Eli) had composed earlier that year. A few days later, the 1st defendant then went to the studio to record the song, which ended up being titled Wach Wach.
“The 1st defendant team sent over the split sheet contract, which the plaintiff signed and sent back to them to also sign and send back the plaintiff’s copy of the duly signed agreement by both parties. The plaintiff avers that the 1st defendant has not sent back the same to date even upon the plaintiff’s requesting for the same via email,” reads part of the court documents.
According to the split sheet contract terms, Nyashinski owns 100 percent master rights in the popular song, Wach Wach, while the publishing rights in the song were split equally at 50 percent between Sam Eli and Nyashinski.
Copyrights in music are governed by a myriad of overlapping and neighbouring rights like master rights and publishing rights.
Master rights are acquired when one owns the original sound recording of their music and this is usually pegged on who finances the production, marketing, promotion and distribution. It can be the artist independently or the record label that the artist is signed to.
Whoever owns the master recording will earn royalties when the song is played or reproduced, this covers platforms such as radio, television, streaming applications or downloads.
As for publishing rights, these cover the music composition dealing with the underlying music element, structure and composition of a song. In a nutshell, these rights cover the original writer, author and the original composer of the song.
To that regard, publishing relates to how an artist’s music is used, for instance in an advertisement as is the case of Wach Wach, used on the Tecno Camon 20 promotional video, a soundtrack in movies or video games.
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The Nigerian producer says that either in late May or early June this year, is when he learnt from friends and relatives that his production, Wach Wach, was being used on multiple advertisements by Tecno, including on screen billboards, national television stations and YouTube.
Sam Eli says he immediately contacted Nyashinski, inquiring how his composition was published without his knowledge, but that the rapper informed him that as far as he was concerned, he owns 100 percent of the master rights.
Sam Eli then informed Nyashinski that by virtue of the publishing agreement, he could not enter into a publishing deal on his own as they jointly own publishing rights to the Wach Wach song, and as such, the use of the record amounted to a publishing deal which as the producer, he is entitled to 50 percent of whatever amount he was paid.
However, Nyashinski’s team disagreed with Sam Eli’s argument and went on to state that they had not requested for any payment for the use of the song in the advertisements by Tecno because as part of the deal, Nyashinski was paid a wholesome figure, reportedly Sh12 million, to play the role of brand ambassador.
With Sam Eli’s effort bouncing off the wall, on June 26th 2023, he instructed his legal team to write a demand letter to both Nyashinski and Tecno seeking to know how much the endorsement deal was worth and demand that he be paid his 50 percent as part of the publishing rights pact.
Four days later, Nyashinski’ legal team, Humphrey & Company LLP (H&C), responded, but refused to disclose the sum paid to their client, citing privacy of contract. “Our client deal with Tecno Mobile is not a publishing deal as indicated by yourselves.
It includes image rights, appearance, interviews, photo/video shoots, travel time and social media associations. You’d certainly appreciate your client has nothing to do with all these as such his demand for 50 percent of the deal value with Tecno Mobile is entirely misguided,” part of the response letter by H&C read.
Curiously, Nyashinski would go on to offer to pay Sam Eli Sh50,000 and have the matter settled, an offer the plaintiff declined.
“On account of the fact that your client owns half the publishing rights of the song Wach Wach, our client offers to yours Sh50,000 as full and final payment for its use by Tecno Mobile. Take note that your client will be deemed to have declined this offer if not accepted within 7 days of this letter,” the letter stated.
Through his legal team, James T.Makori Advocates, Sam Eli branded the offer an insult as he believes the deal is worth millions and therefore informed Nyashinski’s legal team that; “If they do not admit liability and bring to light the sums involved in the deal, he shall pursue them both in court of law and will also pursue the 1st defendant further for all the other songs he has composed for him but he has never received any royalties for.”
Jedidah's legal team wrote back in a letter dated July 6, 2023.
These six songs Sam Eli claims to have never received any royalties for are Wach Wach, Too Much and Flowers, which are included in the Lucky You album.
The others are Showman, Top Form and Kila Saa, with the first two already released albeit without any split sheet agreement for both of them, according to Sam Eli’s application.
Sam Eli notes that upon Nyashinski receiving his latest response threatening to sue, he immediately wired Sh42,632 as payment of royalties for all the three songs that formed part of the ‘Lucky You’ album.
“This payment was not supported with any royalty reports as is usually the norm and the same cannot be justified as the full amount of the plaintiff’s shares of royalties since the release of the three songs years ago to date,” Nyashinski went on to state to the producer, that should he feel discontented, he should then not hesitate taking him to court.
With the matter now before the Milimani Commercial Court, Sam Eli wants the court to find Tecno liable for “illegally” synchronising his composition without his license, consent and approval, which amounts to copyright infringement.
