Rapper Simon Kimani aka Bamboo.

Rapper Simon Kimani aka Bamboo. The three companies were accused of using Bamboo’s three songs to generate revenue on Safaricom's Skiza call back tunes.

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Copyright: Safaricom to pay rapper Bamboo Sh4.5m after nine-year battle

Former hip-hop artiste-turned-businessman Simon Kimani, alias Bamboo, has won a nine-year legal battle against Safaricom. The telecom giant is now set to pay him Sh4.5 million over copyright infringement.

In a 36-paged judgment delivered by Judge Asenath Nyaboke Ongeri, the High Court awarded the Usilete Compe hit-maker Sh4.5 million in general damages for unauthorised use of his three songs Mama Africa, Yes Indeed and Move On as Safaricom’s Skiza callback tunes.

One-time hit, Mama Africa, in which Bamboo featured renowned American-Senegalese singer and record producer Aliaune Damala, popularly known as Akon, was composed, recorded and released in 2005.

Yes Indeed was released in 2005 and Move On, featuring the one-time top charting hip-hop group Camp Mulla, was released in 2012.

Bamboo first moved to court in December 2015, filing the civil case against Safaricom and two premium rate service providers (PRSP) Bensoft Interactive Limited, owned by software engineer Bernard Kioko, and Nigerian-owned Mtech Communication Limited which appointed William Kibiwot Chesire as its chief executive officer.

In the court documents seen by Saturday Nation, the 42-year-old accused the three companies of using his intellectual property without his consent to generate revenue while he was left on the fringe.

The plaintiff stated that at the time of filling the case, he had been in the entertainment industry for 15 years, embracing music as his sole professional career on which he relied for his livelihood and professional growth.

Bamboo, who is the older sibling to singer Victoria Kimani, asserted that he relied on income derived from the sale, promotion, distribution, licensing and performance of his musical works in different media platforms including but not limited to compact discs, distribution and sale of music on digital platforms, live performances and royalties upon licensing.

He argued that he had expended substantial efforts and deployed massive resources, both monetary and non-monetary, in composing, writing, recording, promoting and marketing the three musical works but did not recoup his investment due to copyright infringement by Safaricom, Bernsoft and Mtech.

Bamboo argued that composing a song can take up to three months. After that one goes to production by hiring a producer and a studio. Then the mixing engineer and mastering engineer follow who all have to be paid. The music is then marketed and distributed.

In the particulars of copyright infringement, Bamboo told the court that Safaricom and Bernsoft were jointly collaborative with picking Mama Africa and Yes Indeed with the telecom giant jointly partnering again with Mtech and obtaining the third song Move On without his permission.

He accused the three companies of jointly reproducing, publishing, broadcasting, distributing and selling of his musical work commercially through Safaricom’s Skiza platforms both online and call back hence benefiting from those records without seeking or obtaining authorization or even making any attempts to pay him his dues from the revenue generated.

As a result, Bamboo stated that he had lost exclusive rights to distribute his songs causing him a substantial loss of royalties as well as a loss of opportunity to sell his music to other interested PRSPs.

The former K-South hip hop group member cited an example of telecom company Airtel Kenya which pulled away from a deal negotiation with him upon discovering that the same songs they intended to pick were already on their competitor’s platform Skiza.

On Skiza online portal, Bambo told the court that the three musical works were being downloaded at a cost of 75 cents per song from 2009 up until 2014 when they were expunged from the platform following a demand notice from his legal team.

Bamboo says in efforts to settle the matter, Bensoft admitted liability of copyright infringement on Mama Africa and Yes Indeed and invited him in June 2015 to draft an amicable settlement agreement which the 2nd defendant (Bensoft) refused to honor as agreed.

But in its defence, Safaricom denied Bamboo’s claims stating that it operated a caller back tone (CRBT) Skiza which allows its subscribers to entertain their callers with the subscribers favourite song or tone.

Safaricom stated that it obtained the songs having entered into separate agreement with a third party — the two PRSP Bensoft and Mtech-to provide it with musical contents for use of the Skiza tunes.

The Telecom giant, however, admitted having put the said musical works up for a fee but denied liability on the grounds that it had received the songs from the two PRSPs. As such, Safaricom argued that Bensoft and Mtech agreed to indemnify the telecom giant against any loss in case of breach or copyright infringement.

Kioko, a director at Bensoft, stated that in order to supply and deliver digital content to its customers, the company entered into various contract with copyright owners, their licensees or assignee with a view of securing digital content including sound recordings, underlying music works, artwork and copyrighted works.

Bensoft claimed that if at all it uploaded any alleged musical works then it was pursuant to a non-exclusive license by Music Society Copyright of Kenya (MCSK) under license agreement and a mechanical license agreement, both which permitted it and the benefactors to deal with the subject musical works.

Bensoft also issued a third party notice to MCSK to indemnify itself against all losses, liabilities and damage arising from breach of contract or claims of copyright infringement.

On the part of Mtech, the PRSP denied the plaintiff claims insisting that it was wrongfully and erroneously enjoined as a party to the suit.

Mtech also issued a 3rd party notice to MCSK and media and entertainment consultancy agency Sub Sahara Limited stating that the two granted it a non-exclusive licence to communicate and reproduce any works within the repertory for the purposes of the use of the song Move On.

The two PRSPs argued that they had been licensed by MCSK to provide content to Skiza tunes. Bensoft stated that before it uploaded the songs, it sought confirmation from MCSK on whether it had rights over several artistes, Bamboo included. In response MCSK confirmed that Bamboo had been its member since 2012 and it was on this basis that Bensoft uploaded music on the Skiza platform.

However, Bamboo denied authorising the collective management organisation (MCSK) tasked with collecting royalties on behalf of the artiste to distribute his music. Providing email communications, Mr Kimani stated his membership with MCSK did not authorise them to assign his music as the same required a separate contract which he did not have with any party including the three accused.

MCSK admitted they had made a mistake when Bamboo raised a complaint and to that effect paid Sh600,000 to Bamboo for the two musical works Mama Africa and Yes Indeed.

In the case of Mtech, its CEO Mr Chesire told the court an agreement in respect to copyright and a content distribution license was entered into between his company and Sub Sahara Limited.

That the agreement conferred authorisation and rights over the musical work in respect to the song Move On from Sub Sahara Limited who had received the same rights and authorisation from the author of the musical work via an artist recording contract between Benoit Kanema, Marcus Kibukosya, Mathew Wakhungu, Karun Mungai and Mykie Mutiimi (former Camp Mulla) on one part and Suzzanne Gachukia of Sub Sahara Limited on the second part. The said agreement conferred rights and authorisation from the authors of the musical work to Sub Sahara who then in turn conferred the same rights to Mtech.

Having considered all the evidence adduced by all the parties, Judge Nyaboke found Safaricom (1st defendant), Bensoft (2nd) and Mtech (3rd) culpable of copyright infringement.

“I find that the 1st defendant did not deny that they used the said musical works. The 1st defendant admitted that the same was given to them by the 2nd and 3rd defendants. I also find that the 2nd and 3rd defendant did not deny that they are the ones who gave the musical works to the 1st defendant. I therefore find that the 1st, 2nd and 3rd defendants having admitted that they used the musical works of the plaintiff have infringed the plaintiff’s copyright,” Judge Nyaboke ruled.

The high court faulted the three companies for failing to do due diligence to ensure that the artiste who is the owner of the copyright had signed a contract giving rights to their intellectual property before assigning the same.

“There is no evidence that the 1st, 2nd and 3rd defendants sought to see any document copyrights by the artist before using the musical works. The defendants were aware that there was an artiste responsible for the musical works,”

The judge went on to accuse the three companies of exploiting Kenyan artistes.

“The conduct of the 1st , 2nd and 3rd defendants of using the musical works of artistes without the authority of the owners of copyrights has impoverished artistes in this country and led to exploitation of artistes who are at the mercy of parties who want to harvest where they have not worked.”

Ruling in Bamboo’s favour, Justice Nyaboke, who took over the case from Justice Joseph Sergon, stated: “I find that the 1st, 2nd and 3rd defendants did not avail the records of how much they earned from the plaintiff’s musical works. I assess general damages for infringement of right of Ksh1,500,000 per song in respect of musical works Mama Africa, Yes Indeed and Move On.

Judge Nyaboke also threw out Safaricom’s entitled to indemnity plea from the 2nd and 3rd defendant.

“The 1st, 2nd and 3rd defendants are liable to compensate the plaintiff since they were duty bound to ensure the artistes had signed contracts assigning their rights before using those musical works. Judgment be and is hereby entered in favor of the plaintiff against the 1st, 2nd and 3rd defendants jointly and severally in the sum of Ksh4,500,000 together with the cost of this suit.”