What Konshens’ copyright infringement victory means

“This ruling shows that anyone in the music industry, whose works are being used as caller ringtones or for any other purpose without his or her permission, can sue for such infringement and recover a substantial sum of money for the losses incurred,” Mr Kakooza, a former Dean of Law at Uganda Christian University, told Saturday Monitor, adding, “This is actually not the first case of this nature. Some years back, the Obsessions also successfully sued Warid Telecom for using their songs as caller ringtones without their permission.”

Mr James Wasula, a former chief executive officer of the Uganda Performing Right Society (UPRS), said the ruling shines the spotlight on “the flow of rights in a work.”

“It’s important to understand the role played by each party in producing a song. The singer may not be the owner of the copyright in a song,” he disclosed in an interview, adding, “It is also important for artistes to embrace and respect contracts. If an artiste, for example, contracts a lyricist to write the lyrics, they should sign a contract indicating the owner of copyright in the lyrics, among others.”

Backstory

In 2015, Konshens took legal action against Airtel Uganda, OnMobile Global Limited and MTech Communications as defendants, and Solunet Business Limited as a third party in the Commercial Court in Kampala. This was after the accused were adjudged to have used the Jamaican dancehall reggae singer’s music without his consent and thereby infringed on his copyright.

The musician proved that he is the author and composer of the songs: Simple Song, Gyal a Bubble, So Mitan, Stop Sign, Jamaican Dance, Konshens Jazz Version, No Retreat, and Jah Love Me (referred to as ‘the suit songs/works’).

The plaintiff further said he owns the exclusive intellectual property in the suit songs and has never assigned, or in any way divested his copyright in the suit songs to the defendants. Konshens proceeded to reveal that the three defendants unlawfully accessed his songs and availed them as caller tunes to the Airtel’s subscribers at a fee of Shs600 per download. This was under a programme dubbed “Hello Tunes.”

The plaintiff contended that the defendants jointly and severally infringed his copyright in the suit songs. He added that they refused to account for the proceeds obtained from the said infringement or to pay him any royalties.

His lawyers also argued that not passing to their client the proceeds thereof amounted to infringement of his copyright and unjust enrichment. Konshens also prayed for an order for the account and remission of profits, which had accrued from the sale of his songs, general and exemplary damages, plus interest and costs of the suit.

Ruling

In their submissions, the defendants, through their lawyers, denied infringing on the plaintiff’s copyright and denied liability.

On August 21, Justice Patricia Mutesi ruled that the plaintiff proved that he suffered injury and financial loss after the first and second defendants unlawfully used and distributed his songs. She also noted that the pair failed to remit to Konshens any of the distribution proceeds from the purchased caller tunes. This, she added, entitled the Jamaican to general damages as compensation for the defendant’s infringement of his copyrighted works.

Justice Mutesi ruled that by using and distributing the plaintiff’s suit songs as caller tunes without his consent, the first and second defendants were jointly and severally liable for infringement of the plaintiff’s copyright in the suit songs. The first and second defendants’ distribution of the plaintiff’s songs without remitting the proceeds consequently amounted to unjust enrichment.

The judge awarded general damages of $180,000 as compensation for infringement of the plaintiff’s copyright in the said songs. Interest was awarded at the rate of 15 percent per annum from the date of filing suit until payment in full.

Airtel and OnMobile Global Limited were ordered to pay the plaintiff Shs20 million ($5,378) and Shs30 million ($8,068) respectively as exemplary damages for copyright infringement.

Counsel

Mr Wasula, who is also the chief executive officer and director of Afrigo Band, told Saturday Monitor that copyright infringement cases are common in the music industry “because musicians are more in the media.” He hastened to add that other performers in the creative arts and even authors grapple with copyright infringement.

To insulate themselves from copyright infringement, Mr Kakooza advises performers in the creative arts “to seek advice before entering into any contracts that relate to their music.” Many musicians, he said, “have been known to sign away their rights to their music for very little money and yet if they take off time to internalise and understand the contracts they are entering into, this would save them a lot.”

Whilst the establishment of a copyright as a right does not require any formality, Mr Kakooza said he “would advise Ugandan musicians to register the copyright in their music.” Holding a certificate of copyright registration, he added, “gives them more leverage in any negotiations for use of their work and is the best evidence to rely upon in the event that someone has misappropriated the music.”

Who Is Konshens

Garfield Delano Spence, alias Konshens, who is also a DJ and businessman, was born in Sherlock, Kingston, Jamaica on January 11, 1985. He became an international superstar almost immediately after bursting onto the music scene in 2005 with the hit single Pon Di Corner.

His other top singles are Rasta Impostor, This Means Money, Good Girl Gone Bad (featuring Tarrus Riley), Gal Dem A Talk, Realest Song, Represent, Winner, Forward, and  Bounce Like A Ball.

Konshens’s studio albums are Real Talk (2010), Mental Maintenance (2012), Road Album (2014), It Feel Good (2018), Raw (2018), Badman vs Nice Guy (2019), Soca Virgin (2020), and Red Reign (2021).