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Court awards artist Sh5m in copyright case against bank

 A court gavel. (Courtesy)

A commercial court in Nairobi has ordered Equity Bank to pay a music artist Sh5.2 million for infringing his copyright in its 'Wings to fly' programme and malicious prosecution.

Justice Wilfrida Okwany said it was ironical for the lender to trump-up criminal allegations against Eric Obiero, who was then 16 years, and have him charged before the magistrate's court while using his song in its charity programme without his consent.

The judge observed that Equity was cruel as Obiero was also a student at that time.

"I find it quite ironical, that the respondents, who through their programme 'Wings to Fly', promote the education of bright needy students could choose to treat the petitioner, who was himself a student, in such a cruel manner. In my considered view, the respondents could have employed other means to amicably settle the differences that they may have had with the petitioner over the music contract instead of involving the police in the matter," said Justice Okwany.

Obiero told the court that on May 2013, he approached Equity with a proposal to publicise 'Wings to Fly'. He agreed to compose an original piece and Equity offered to purchase the same at Sh10 million.

In his testimony before the court, he stated that Equity turned around and instead caused his arrest and prosecution with an offense of forgery. His brother Geoffrey Odongo was also charged. The court heard that the two were acquitted on October 3, 2017.

Obiero told the court that the intent by Equity was hell-bent to have him charged before the court. At the same, he testified, he was charged and tried in an adult's court while he was still a minor. The court heard that Obiero was a high school student aged 16. He stated that his manager, one John Kennedy, secured him the contract to produce a song to promote Equity's charity.

According to him, the bank offered him a scholarship in exchange for the rights to the music but his parents did not accept the idea. He said, the bank then offered Sh10 million. Justice Okwany heard that the bank then reviewed the offer to Sh2.5 million and started to use the song even before they had sealed the deal. Obiero said that after several correspondences, the bank's legal team warned they would take legal action against him and Odongo.

Held for 12 hours

The court heard that upon going to the lender in the company of his brother, he was detained for at least 12 hours before he was handed to the police. He was subsequently charged with an offense of attempting to defraud the bank of Sh10 million.

He said the bank refused to pay him and has continued to use the song. Equity opposed the case. Its senior communication manager Edward Muchai admitted that Obiero met him with a CD that he wanted him to listen to.

He confirmed that after listening, he told him that song could be used by the Equity Group Foundation. Muchai claims Obiero's song was not an original composition but an extraction of Reunion. Muchai also claimed that the signature on the agreement was a forgery.

Justice Okwany found that Muchai gave contradictory evidence. According to the judge, the charges were malicious.

She ordered Equity to stop using Obiero's son. She ordered Equity, DPP, Inspector General of Police to pay him Sh250,000 for malicious prosecution. She ordered Equity to pay Sh5 million for a breach of his copyright.

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