I am a budding musician and have been recording with some local studios. One of the producers used my work in another artist’s song. The song is now a hit and they have not paid me. Can I sue the producer and the artist?
MUSIC COPYRIGHT AND PAYMENT OF ROYALTIES
Copyright laws exist so as to protect the economic and moral rights of authors of musical works.
Economic rights are those rights the authors should benefit from as a direct accrual of their music. These include the rights to adapt or translate the work, perform the work in public, and reproduce the work in any material form.
To otherwise act in this capacity without the written authority of the composer is a violation of the author’s economic right and actionable, in a civil and/or criminal court. So yes, you can sue him and the other artist who is using your work.
You should also know however, that as the copyright owner you can sell, license or bequeath your economic rights to another person. This transfer should be in writing and can be full or partial.
Moral rights are those that entitle you to claim authorship of the work and object to the distortion, modification or mutilation prejudicial to his honour or reputation. Moral rights are not transferable.
For your music to be copyrighted, it must be original and in a tangible form e.g. CD, cassette. Copyright expires 50 years after the end of the year in which the recording was made or 50 years after the end of the year in which the author dies.
It is important that you note that copyright is a private right, and an owner is expected to closely monitor the market to detect any infringements. The Kenya Copyright Board and police cannot act without a complainant.
The Kenya Copyright Board is established under the Copyright Act to register and protect copyrights within Kenya. Among its functions are the licensing, supervision and issuance of annual certificates to Collective Management Societies.
Collective Management Societies (CMOs) are associations formed as legal companies (with their own memoranda and articles of association) to collect and distribute annual royalties within a particular sector of the Copyright Industry e.g. written works and music works. I suggest you find one and join.
When you do, anyone who wishes to use your work will have to approach the CMO in order to comply with copyright law. The CMO will assess the subject premise and quote an appropriate amount that should be paid based on various factors e.g. location, level of music activity (is the music blaring or just playing in the background), nature and capacity of the establishment. For example, broadcasting stations pay a different rate from clubs.
The Kenya Copyright Board has in addition, mandated and certified the Music Copyright Society of Kenya (MCSK) to collect and distribute annual royalties for music copyright. You should check in with them as well.