In January 2011, gospel musician Rebecca Wanjiku registered the copyright for her song "Rungu Rwa Ihiga" (Under the rock), believing it would prevent unauthorised copying.
But despite this registration, a men’s choir for the Christ is the Answer Ministries (Citam) church later incorporated parts of her song into their mixed performance titled “Athuri Mwihithe” (Men seek refuge), leading to a copyright infringement case and a court order for the church to pay her Sh1.5 million damages.
So fascinating was the dispute because the songs had to be played in the courtroom for the judge to listen and make her own findings on infringement of copyright.
The copied part of the song runs three minutes. The choir pulled two main defence lines. At first it claimed that Ms Wanjiku’s song was a piece of folklore in the Kikuyu community before turning to the Bible and claiming that their song was derived from the Exodus 33:21–23.
Both augments fell flat.
The court told the choir that Ms Wanjiku’s lyrics, rhythm, and musical structure were protected by the law and that the choir's performance of the song amounted to a deliberate and unlawful appropriation of her protected expression.
On January 26, 2011, Ms Wanjiku registered the song at the Music Copyright Society of Kenya (MCSK).
However, in 2020 while uploading her songs on Youtube, she was surprised that Citam men’s choir had in May 2015, uploaded a mix performance on YouTube channel known as Men's Chorale, which contained lyrics that were similar to her song.
She sued the church and its choir leader Isaac Kalua complaining about infringement of her rights. The YouTube channel had an audience of approximately 2,900 subscribers.
She said their actions constituted copyright infringement Act and that continued publication, distribution, and performance of the infringing work caused her economic harm. She claimed the defendants unlawfully reproduced and performed her copyrighted song without her consent.
In support of her claim, Ms Wanjiku furnished the court with a flash disk containing both the audio-visual recording of the church’s performance and her own version of the song. The recordings were played in court during the hearing of the case.
“There is no doubt that the defendants’ piece is a combination of gospel songs performed in the Kikuyu language. Ms Wanjiku identified the allegedly infringing segment as running from minute 2:43 to minute 6:13 of the defendants’ track,” observed the court.
The church and the choir leader were unable to adduce credible evidence to show that “Athuri Mwihithe” was independently created without reference to Ms Wanjiku’s work.
During cross-examination, Mr Kalua conceded that the lyrics in the contested portions of the church’s song were identical to those in the artist's composition.
“There is no serious dispute that the tune employed in both songs is substantially similar. Ms Wanjiku testified unequivocally to this fact, and the audio evidence played in court supports this assertion. During cross examination Mr Kalua was at pains to explain the striking similarities between the two songs,” said Justice Fridah Mugambi.
Mr Kalua had testified that the lyrics in question were derived from the Book of Exodus 33:21–23 in the Bible, and insisted that the words could not have been expressed differently.
“It is apparent from the verses that, while they refer to a “rock” in a metaphorical and theological context, they do not contain the lyrical structure or language employed in either the plaintiff’s or the defendants’ song. There is no textual basis in these verses for the repeated lines such as “Men seek refuge under the rock” and similar formulations addressed to women and youth,” said the judge.
According to her, the biblical passage does not, mirror the lyrics used in the contested musical composition.
“This undermines the credibility of the defendants’ claim that their song merely paraphrases or draws directly from scripture,” she stated.
In the court’s view, even if the church and its choir and Ms Wanjiku drew inspiration from similar biblical themes, what is protected is the artist's particular arrangement of lyrics, rhythm and musical structure.
The court found that the repeated use of identical lyrics and a substantially similar melody over a significant portion of the church choir’s song, created the unmistakable impression of copying.
The church there was no infringement on the basis that its use of the lyrics and tune was “incidental”. However, beyond the assertions made in their pleadings, they did not produce any evidence to support this claim.
“No witness was called to testify to the song’s alleged traditional or communal origin, or to demonstrate that the song predates the plaintiff’s authorship or exists in the public domain,” said Justice Mugambi.
Ms Wanjiku availed a witness, Ms Mary Wambui Kariuki, from the Music Copyright Society of Kenya to support her case. The witness said that artists who had previously performed the song, had expressly acknowledged Ms Wanjiku as the author and had done so with her permission.
“. A mere assertion that a song is widely performed in a particular language does not, without more, displace a claim of authorship supported by formal registration and uncontroverted testimony. I therefore find the defendants’ claim that the work constitutes folklore to be unsubstantiated and legally untenable,” said the judge.
Another observation was that the artist launching her YouTube channel on November 11, 2020, after the filing of the court case, was inconsequential to the determination of copyright ownership or infringement.
According to the court, the date of publication on a digital platform does not displace or diminish the plaintiff’s proprietary rights, which had already been established through formal registration.
“Having registered the copyright to the song on January 26, 2011, Ms Wanjiku acquired the full bundle of exclusive rights granted under the Copyright Act, including the rights to reproduce, perform, distribute, and communicate the work to the public,” said the judge.
“The segment of the defendants’ song in which the contested material appears is neither casual nor inessential. On the contrary, it spans over three minutes, nearly half the entire composition, and comprises lyrics and a tune that are central to the structure, rhythm and message of the song,” said the judge.
The defendants stated they do not sell their songs and that their performances are intended solely for ministry and spiritual edification.
“While this may be relevant in the context of assessing the quantum of damages, it does not negate liability for copyright infringement,” said the judge.
The court ordered the church to pull down from all platforms, and to destroy any copies, records and or performances of the song titled "Rungu Rwa lhiga" under the title "Athuri Mwihithe" or any other title, within seven days from the date of the judgment.
It also issued an injunction barring the church and Mr Kalua or any person acting in league with them from making any sales, hire, distribution, performance, reproduction and or other act that amounts to infringement of copyrights held by the artist in the song.
