The judgement delivered in commercial court is a landmark ruling for content creators in the country
Legendary rapper Hubert Mbuku Nakitare, alias Nonini is now a happy man after Principal Magistrate Hosea Ng’ang’a of the Milimani Commercial Magistrate Court awarded him Ksh4 million for a copyright infringement case against a multinational electronics company and social media influencer Brian Mutinda.
The judgement delivered in commercial court is a landmark ruling for content creators in the country as Kenya is gaining momentum as far as monetising creative content is concerned.
The judge, while delivering the judgement virtually through Microsoft Teams video link, declared that the defendants were liable for illegal publishing and directed that profits made from the infringement be recovered, as well as Mutinda and the company to bear additional interest costs.
The Manzi wa Nairobi hitmaker had accused the social media influencer of publishing a short video meant to market one of the products of the company on his Instagram page and using one of his songs, which he argued were used without his permission.
Popular social media influencer, Brian Mutinda. /MUMA PIX
The short video in question was published on the company’s verified Facebook page and used his hit song, We Kamu, to synchronise with the visuals without a synchronisation license, which is against copyright laws.
In his defence, Mutinda argued that he made the video without any music in the background at the time of the creation.
He told the court during cross-examination that he submitted the video with its natural audio and was not synched to the music. He, however, did not have a copy of the original video he submitted in evidence.
Mutinda admitted that the content in the video fit with the music used, but said that the company looked for the song to fit the visual content. He further asserted that he could not control what the client asked him to make the video posts, adding that he was not their agent.
“The plaintiff avers that the video was created by the first defendant on his TikTok account and the same is referenced in the bottom left corner of the video. The plaintiff avers that the video was then reposted by the second defendant on its corporate account on Facebook,” Ng’ang’a said in the judgment.
“The plaintiff avers that his song entitled “We Kamu” was playing throughout the skit as the soundtrack. He avers that the video was posted by both defendants on their social media pages. He avers that the posts were captioned as follows: “Netflix and chill right. The all-new Synix U51 series has got you and bae this long holiday. #Syinix U51Series HomeCinemaExperience”. He asserts that the meaning of this caption is that the first defendant was promoting the second defendant’s TV products as its influencer.”
Magistrate Ng’ang’a ruled that after his analysis, both defendants were deemed culpable of copyright offences against Nonini. However, he denied Nonini the prayer for aggravated and punitive damages as the judge felt that the critical threshold to validate these charges in Kenyan law had not been met.
On his part, the renowned rapper hailed the judgement, saying that intellectual property (IP) was like any other property, and thus it required protection.
“There are persons out there who don’t see value in IP, and so they’re always going to have a problem. IP is like any other property. Protection of IP and copyright is a key aspect of economic development. But the most important thing about IP versus the creative expression is that copyright law was created not to stifle creativity, but to encourage creativity,” said Nonini.
The ruling came as a reminder to content creators to seek permission before using third party intellectual property, as previously cautioned by entertainment and IP lawyer Liz Lenjo.
She noted that brands that engage influencers must ensure that they have the necessary rights to use intellectual property assets such as music, pictures, or any other intellectual property, to avoid legal disputes.
Nonini has been sharing updates on the case on Twitter (now X) since July 27, 2022, including an update from the Kenya Copyright Board (KECOBO) on the same.
The Milimani Law Courts in Nairobi. /FILE
