A Nairobi court has ordered rapper and vocalist Nyamari ‘Nyashinski’ Ongegu to furnish it with contract documents detailing the ambassadorial deal he signed with Tecno Kenya Limited in a Copyright case against him filed by a Nigerian music producer.
The producer, Sam Are Eliapenda Jedidah alias Sam Eli Are, moved to court last year suing Nyashinski (1st defendant) over copyright infringement by signing an endorsement deal with the Chinese based global smartphone company listed as 2nd defendant in the civil suit No.E617/2023.
In court documents, Sam Eli accused Nyashinski of using the hit song ‘Wach Wach’ he produced, to promote and endorse Tecno device Camon 20 released in to the Kenyan market last year.
Sam Eli argued that as the producer of the ‘Wach Wach’ song used in the Tecno commercials by Nyashinski, he is entitled to 50 percent of the fortune made from the endorsement deal but his effort to contact the rapper for his fair share, has remained futile.
Nyashinski bagged the multimillion shilling deal with Tecno in May 2023, when he was appointed the brand ambassador of the Tecno Camon 20.
According to an agreement of the ownership of the song ‘Wach Wach’ in the center of the storm, Nyashinski owns 100 percent master rights of the song while the publishing rights of the song were split equally at 50 percent between Sam Eli and Nyashinski.
Copyrights in music are governed by a myriad of overlapping and neighboring rights like master rights and publishing rights.
Master rights are acquired when one owns the original sound recording of their music and this is usually pegged on who finances the production, marketing, promotion and distribution.
It can be the artist independently or the record label that the artist is signed to.
Whoever owns the master recording will earn royalties when the song is played or reproduced, this includes on platforms such as radio, television. Streaming application or downloads.
As for publishing rights, these cover the music composition dealing with the underlying music element, structure and composition of a song.
In a nutshell these rights cover the original writer, author and the original composer of the song.
To that regard, publishing relates to how an artist’s music is used for instance in an advertisement/commercial as is the case of ‘Wach Wach’ used on Tecno Camon 20 promotional video, soundtrack in movies or video games.
The music producer say he came to learn of the use of ‘Wach Wach’ in the Tecno commercial on screen billboards, national television stations and YouTube.
The Nigerian says he immediately contacted Nyashinski inquiring how his composition was published without his knowledge.
But the rapper argued that he did not know that he needed to inform him of the use of the song by Tecno because as far as he was concerned, he owns 100 percent of the master rights.
Sam Eli would then inform Nyashinski that by virtue of the publishing agreement, he could not enter into a publishing deal on his own as they jointly own publishing rights to the ‘Wach Wach’ song and as such the use of the record amounted to a publishing deal which as the producer he is entitled to a 50 percent of whatever amount he was paid.
In his defense statement, Nyashinski argued that the suit against him was in bad taste as it was instituted against non-parties urging the court to dismiss it with costs.
“In response to Para 9 and 10 of the Amended Plaint, the 1st Defendant avers that the owner of 100% master rights and 50% publishing rights to the song Wach Wach is GETA International and not the 1st Defendant. The plaintiff owns 50% publishing rights to the song ‘Wach Wach’. GETA International Company Limited is not a party to this suit,” Nyashinski states in his defense.
In response, Sam Eli legal team furnished the court with company documents which shows the rapper to be the sole Director of GETA International Limited holding 100 percent of the shares in the Company.
Geta International Limited company number PVT-ZQUV239 was registered on 18th December 2017 with Nyamari Ongegu (Nyashinski) the sole director and shareholder.
“The 1st defendant cannot hide behind the corporate veil of Geta International Limited a company he is the sole Director/Shareholder. The plaintiff in response to paragraph 8 and 9 of the defense states that by virtue of the plaintiff owning 50% publishing rights to the song ‘Wach Wach’ as admitted by the 1st defendant in paragraph 6 of his defense, the plaintiff is entitled to 50% proceeds of all publishing deals entered by the first defendant with regards to the song Wach Wach,” Sam Eli legal, avers in their response.
When the musician and Tecno were first served with a demand letter on June 26th 2023 in which Sam Eli sort to be paid 50 percent of the deal as part of the publishing rights pact, the rapper declined.
The musician stated that his contract with Tecno wasn’t a publishing deal as the Nigerian music produced claimed but rather one which included image rights, appearance, interviews, photo/video shoots, travel time and social media associations.
In addition, Nyashinski argued that GETA International signed a fair use agreement with the 2nd defendant for the use of the song ‘Wach Wach’ which he had every right to as a 100% master rights owner and 50% publishing right owner, this is in addition to the fact that Nyashinski appears on the advert(s).
“The 1st Defendant avers that the plaintiff is however misguided in both law and fact about what entitlements he possesses on account of 50% share of publishing rights to a song,” Nyashinski argues in his defense.
He adds,“In any song, multiple stakeholders collect a percentage of the royalties based on the work done. This range from songwriters, producers, performers and labels. These rights must be considered and exercised within the entitlement of other right holders of the song,”
In response, Sam Eli Are argued that the use of the song in this case was commercial in nature and not fair use and as such each right holder was entitled to a piece of the pie.
“The plaintiff in response to paragraph 11 of the defense states that the fair use in intellectual property law permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comments, news, reporting, teaching, scholarship or research. The use of ‘Wach Wach’ by the 2nd Defendant (Tecno) was commercial in nature to promote the sale of its new mobile phone brands to increase sales and profits and that does not fall under fair use,”
The producer also sort to know how much the deal was worth to which Nyashinski declined stating that he was bound to a non-disclosure agreement between him and Tecno.
“The agreement between GETA International and the 2nd respondent is subject to a non-disclosure clause and the plaintiff has no right to demand the same as it was a brand ambassadorial agreement,” Nyashinski submitted.
In response, Sam Ali team cited Contract Cap 23 Laws of Kenya which provides for the disclosure of all contracts by operation of law in the interest of justice.
Before moving to court-the music producer who has been residing in Kenya as a student-had declined a one off payment of Sh50,000 from Nyashinski as payment for his synchronization rights for the use of the song ‘Wach Wach’ .
Nyashinski gave him a seven day ultimatum to accept the deal or leave it. The producer declined and moved to court.
In his defense Nyashinski argues the one-time payment was for synchronization right which was more than enough.
“The amount is more than adequate for the plaintiff who earned only Sh42,632 for a total of three songs for a period of over two years. The GETA International paid to the plaintiff Sh42,632 being royalties for the mechanical rights for the songs ‘Wach Wach’, Too Much’ and ‘Flowers’ covering the period between 2020 and 2022.
But in a rebuttal the producer argued that a synchronization deal is done through a legal synchronization license agreement between the copyright owner of a piece of music and the party seeking to use the music.
However, in this case, there are two copyright holders to the ‘Wach Wach’ hit, and that’s why both Sam Ali and Nyashinski own the song’s publishing rights at 50-50 percent.
As such the Sh42,6732 paid does not have any basis in law as far as the infringed rights are concerned and that only appreciation of the contract between Nyashinski and Tecno to the court for scrutiny would offer fair judgement.
Setting the date for the pre-trial hearing for 12th March, 2023, Honorable Justice Selina Muchungi agreed with the Sam Eli’s prayers directing Nyashinski to furnish the court with copies of the brand ambassadorship agreement signed between Geta International Limited and Tecno for the Camon 20 device campaign.
In addition, Nyashinski is to serve the court with copies of all the royalties reports from all the digital platforms from the date of release for the other four songs Sam Eli produced for him, which he also claims to not have received any royalties payments from the singer.
By Sinda Matiko