Kenyan ‘Mtukudzi’ is dancing with trouble

Kenyan gospel artiste, Antony Musembi, recently released a viral cover version of the late Zimbabwean musician Oliver “Tuku” Mtukudzi’s song Todii. Musembi repackaged the song as a campaign melody for the fight against Covid-19. This led to protest from Tuku’s manager Walter Wanyanya. The video is still available on YouTube and it is not clear whether there has been some sort of agreement between the two.

Cover songs are especially common among musicians who want to reach out to as many people as possible. They do so by reproducing original songs which are more appealing to particular demography. In the wake of the Covid-19 pandemic, artistes globally have risen to the test by composing ‘infotainment’ songs to raise awareness and inspire hope, while others have seized the moment to capture their fans’ attention. Most of these songs are cover songs or renditions of previous songs. According to YouTube, millions of cover songs exist on YouTube platform alone, with around 12,000 new covers uploaded daily.

A cover version of a song is a remake of a song by someone other than the original artiste or composer of a previously recorded song. It replaces the original vocals without changing the underlying melody or arrangement. Some cover songs are created by fans out of love of the original artiste, with no negative impact on the market value of the original song while others may commercially compete with the original song.

It is worth noting that the Berne’s convention reciprocity principle of national treatment requires Kenya to accord Zimbabwean nationals the same level of copyright protection provided to her own nationals. Copyright in both countries subsist for the lifetime of the author plus 50 years from the end of the calendar year in which the author died. Tuku died in January 2019.

A musical work under the Kenya Copyright Act includes the graphical notation of the work (melody expressed in visual symbols) and works composed for musical accompaniment (including the lyrics and voice or instrumental that carries the melody).

The Zimbabwean Copyright Act defines a musical work as an arrangement or transcription of the work. An arrangement in music is the reconceptualisation of the graphical notations to give it a musical variety while transcription refers to the analysis of the acoustic musical signal so as to write down the melody.

Generally, every musical work consists of two distinct copyright elements; the melody (graphical notation) as musical work and the accompanying lyrics as literary work. These can be separated and still be protected independently. A cover song typically reproduces an existing melody while using original lyrics.

An infringing copy under the copyright laws mean a copy, the making of which constitutes an infringement of the exclusive rights protected under copyright. The exclusive right to control the reproduction, distribution, communication or making available to the public of the original work are protected under the Kenyan and Zimbabwean Copyright laws subject to specific limitations and exemptions. Infringement is the doing or causing to be done these acts without a licence from the copyright owner.

It follows therefore, that any unauthorised reproduction of another’s musical work including the melody (graphical notation) would be an infringement.

Mechanical licence

The exemptions and limitations do not apply to cover songs. They only apply to works made by way of fair dealing for the purpose of scientific research, private use, criticism or review, or the reporting of current events; or where it is made for parody, subject to sufficient acknowledgement of the author. Notably, Zimbabwe does not have an exemption for parody.

In order to monetise and publicly distribute a cover song, the covering artiste must obtain a mechanical licence from the original artiste allowing him to utilise the original musical work. Failure to do so may attract legal sanction.

Musembi’s corona version cover clearly reproduces Tuku’s melody in the song Todii. This melody is Tuku’s exclusive right and is in itself a work eligible for copyright independent of the lyrics.

The copyright in the melody was infringed by Musembi, when without Tuku’s licence; he reproduced, distributed and communicated to the public Tuku’s original melody. If Musembi intended to use the Tuku’s melody he ought to have obtained a licence from the custodians of Tuku’s copyright.