Telecommunication giant Safaricom has slammed breaks on musician Timsimon Kuria Kimani aka Bamboo’s celebration after he won a nine-year-old Sh4.5 million worth of copyright claim against it.
The company has now obtained stay orders against the decision that saw Justice Asenath Ongeri penalize it for using three songs associated with the artist as ring-back tones over a period of years.
The “Usilete Compe” hit song maker had been over the moon celebrating the win, attributing it to the “power of God’s word and righteousness.” The copyright claim was in respect of songs “Mama Africa”, “Yes Indeed” and “Move On.”
But no sooner had word gone round about his newfound riches, than Safaricom struck back:
“The application is certified urgent. Temporary stay of execution granted pending hearing on November 1st, 2023,” an order of the court issued on Tuesday read.
In the earlier judgment, Justice Ongeri had, on the basis of Safaricom’s admission that they used the musical works cited by Bamboo, concluded that the Company had infringed on his copyright.
She trashed arguments by the telecommunication firm that it had obtained indemnified assurances from third parties that Bamboo has signed a contract allowing his music to be shared.
The judge also said although it was not possible for the Company to contact every artist to confirm they had allowed their music to be used as ring tones popularly known as Skiza tunes, they ought to insist on duly signed contracts by the artists.
“The conduct of using musical works of artistes without the authority of the owners of copyrights has impoverished artists in this country and led to exploitation of artists who are at the mercy of parties who want to harvest where they have not worked,” she said.
But in their appeal through the law firm of Prof. Musili Wambua & Co. Advocates, Safaricom says the Judge misapprehended the issue for determination which was whether Bamboo owned the copyright to the three musical works.
Instead, the Company says the Judge substituted this issue with another issue not canvassed in the case; whether Bamboo’s copyright was infringed. The Judge also failed to distinguish between the distinct concepts of authorship and ownership in copyright, the Company adds.
“The judge erred in analyzing the submissions and authorities cited by Bamboo in a lopsided manner while disregarding those cited by Safaricom,” the grounds of appeal read.
Further, the Company says the Judge failed to address herself to the issue of indemnity and third-party claim canvassed before the court by parties in the dispute.
The Company had argued that it had been indemnified from such claims by the companies which supplied the musical works and who were sued alongside it by the artiste.
Finally, the Company claims the Judge erred by making a finding of liability for copyright infringement when none was proved through evidence, and that she misdirected herself in awarding the Sh4.5 million in general damages when there was no loss suffered by Bamboo on the basis of evidence produced in court.
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In a supporting affidavit, Safaricom’s in-house Counsel Daniel Ndaba says the court adopted a “narrow interpretation of the law and the evidence adduced in court.” He said the Company was willing to furnish suitable security as a price for the Sh4.5 million decree ahead of determination of appeal.