Govt Speaks After Musicians Sue Brian Mutinda

KECOBO explained that using a sound recording in the background of a film, an advertisement or similar audiovisual works, including a song, is deemed as synchronisation

Marvin Chege Marvin Chege
Aug 25, 2022 - 13:25 Updated: Aug 25, 2022 - 13:27
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Govt Speaks After Musicians Sue Brian Mutinda
Popular social media influencer, Brian Mutinda. /MUMA PIX

Kenya Copyright Board (KECOBO) has directed firms and individuals to seek permission from musicians before using their tracks for commercial purposes.

This is after social media influencer and content creator, Brian Mutinda, was caught red-handed by rap group Wakadinali and rapper Hubert Mbuku Nakitare, alias Nonini for the same reason, copyright infringement.

The group sued the influencer for using their Geri Inegi song in one of his content pieces, adding that attempts to resolve the matter out of court went up in smoke.

“It is with great sadness that we bring this to the public, our music was being infringed upon by some entities and we tried to resolve it privately but they refused to settle with us,” Wakidanali said.

Music group Wakadinali. /YOUTUBE

Squad Digital, a subsidiary of Scangroup, an agency under which Mutinda is working under had earlier told Wakadinali that the music used in the commercial was available in the Instagram music library and was therefore licensed under the platform.

"Please be advised that one can record a reel with their own original audio with original audio by another reels creator or with music from the Instagram music library using the audio tool in reels. Your client's music was available in the Instagram music library. Licensed audio is copyrighted audio available on the Instagram music library," said the letter by the scan group.

Mutinda was previously sued by Nonini after he used his hit song, We Kamu, to synchronise with the visuals without a synchronisation license while marketing for a multinational electronics company.

KECOBO, in a statement on Thursday, August 25, explained that using a sound recording in the background of a film, an advertisement or similar audiovisual works, including a song, is deemed as synchronisation and a breach of copyright.

"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 KECOBO advisory on the matter," it explained.

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," KECOBO Executive Director, Edwin Sigei, revealed in an opinion piece published via the Nation.

Sigei observed the use of a photograph of a man voting in Uasin Gishu County in the August 9 elections dubbed 'Sina Maoni man', who went viral hours into the polling day. He added that the question of who owns the work and can, therefore, benefit from it arose due to the quick merchandising on offer, especially on social media.

"The media house (Citizen TV) 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," he said.

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