11
ISSUE
36
By Paul Kaindo
A
Kenyan gospel artist, Antony
Musembi recently released a viral
cover version of the late Zimbabwean
musician Oliver “Tuku” Mtukudzi’s song
Todii. Musembi repackaged the song as
a campaign melody for the fight against
COVID-19. This led to protest from Tuku’s
manager Walter Wanyanya. The video is
still available on YouTube and it is not clear
whether there has been some sort of agree-
ment between the two.
Cover songs are especially common among
musicians who want to reach out to as many
people as possible. They do so by reproducing
original songs which are more appealing to par-
ticular demography. In the wake of the COV-
ID-19 pandemic, artists globally have risen to
the test by composing ‘infotainment’ songs to
raise awareness and inspire hope, while others
have seized the moment to capture their fans’
attention. Most of these songs are cover songs
or renditions of previous songs. According to
YouTube, millions of cover songs exist on You-
Tube platform alone, with around 12,000 new
covers uploaded daily.
A cover version of a song is a remake of a
song by someone other than the original art-
ist or composer of a previously recorded
song. It replaces the original vocals
without changing the underly-
ing melody or arrangement. Some
cover songs are created by fans out
of love of the original artist, with
no negative impact on the mar-
ket value of the original song
while others may commer-
cially compete with the
original song.
It is worth noting
that the Berne’s con-
vention reciprocity
principle of national
treatment requires
Kenya to accord Zim-
babwean nationals the
same level of copyright
protection provided to her
own nationals. Copyright in
both countries subsist for the
lifetime of the author plus
fty years from the end of
the calendar year in which
the author died. Tuku died
in January 2019.
A musical work under
the Kenya Copyright Act
includes the graphical no-
tation of the work (melody
expressed in visual symbols) and works com-
posed for musical accompaniment (including
the lyrics and voice or instrumental that carries
the melody). The Zimbabwean Copyright Act
denes a musical work as an arrangement or
transcription of the work. An arrangement
in music is the reconceptualization of the
graphical notations to give it a musical
variety while transcription refers to the
analysis of the acoustic musical signal so
as to write down the melody.
Generally, every musical work
consists of two distinct copyright
elements; i.e. the melody (graphi-
cal notation) as musical work
and the ac- compa-
ny-
ing
lyrics
as liter-
ary work. These can be separated
and still be protected indepen-
dently. A cover song typi-
cally reproduces an existing
melody while using origi-
nal lyrics.
An infringing copy
under the Copyright laws
mean a copy, the making
of which constitutes an
infringement of the ex-
clusive rights protect-
ed under copyright.
The exclusive right to
control the reproduc-
tion, distribution,
communication
or making available to the public of the origi-
nal work are protected under the Kenyan and
Zimbabwean Copyright laws subject to specic
limitations and exemptions. Infringement is the
doing or causing to be done these acts without
a license from the copyright owner. It follows
therefore, that any unauthorized reproduction
of anothers musical work including the melody
(graphical notation) would be an infringement.
The exemptions and limitations do not apply
to cover songs. They only apply to works made
by way of fair dealing for the purpose of scien-
tic research, private use, criticism or review,
or the reporting of current events; or where it is
made for parody, subject to sufcient acknowl-
edgement of the author. Notably, Zimbabwe
does not have an exemption for parody.
In order to monetize and publicly distribute
a cover song, the covering artist must obtain a
mechanical license from the original artist al-
lowing him to utilize the original musical work.
Failure to do so may attract legal suction.
Musembi’s Corona version cover clearly
reproduces Tuku’s melody in the song Todii.
This melody is Tuku’s exclusive right and is in
itself a work eligible for copyright independent
of the lyrics. The copyright in the melody was
infringed by Musembi, when without Tuku’s li-
cense; he reproduced, distributed and commu-
nicated to the public Tuku’s original melody. If
Musembi intended to use the Tuku’s melody he
ought to have obtained a license from the cus-
todians of Tuku’s copyright.
Paul Kaindo is an advocate of the High
Court and a Senior Legal Counsel at the
Kenya Copyright Board.
kiariekaindo@gmail.com.
Kenyan Gospel Musician Risks
Legal Action over Mtukudzi’s Copyright