Copyright Infringement Cases are Hard to Prove

Johannesburg - Much celebrated jazz maestro Caiphus Semenya made national news when allegations surfaced that he is demanding 50% royalties from the late AKA’s estate for sampling his music without his knowledge.

According to media reports, the music legend alleged that AKA, whose real name was Kiernan Forbes, sampled two songs without permission in his recently released album, “Mass Country”.

The album was released 15 days after the rapper was fatally shot outside a Durban restaurant on February 10.

The album was on track to earn significant numbers on music streaming services in the early days after its release. It amassed over six million Spotify streams hours after its release.

According to media reports, Semenya has spoken to lawyers about the alleged infringement, but is hoping to resolve the matter amicably.

Under South African copyright law, the Copyright Act 98 of 1978, Sections 23 and 24 of the Act state that violators of copyright, (i.e, violators of the exclusive rights granted to a copyright owner) may be subject to a civil lawsuit for damages, which are frequently calculated based on a fair royalty.

Moreover, under the conditions of Section 27, the State may choose to discover the proceeds from specific violations of the law in the event that they result in a fine, a jail sentence, or both.

Nisa Global Entertainment's multi-jurisdictional copyright lawyer and forensics expert, Dr Graeme Gilfillan, said that in terms of the law, musicians are performers who, in 90% of circumstances, do not own any rights, their record company being the owner of recordings.

Additionally, composers are authors who, in 90% of circumstances, do not own any rights except moral rights, the publishers being the owner of the song.

“Any artist or musician who has a complaint against artists who use a recording they have performed would have to speak to the rights holder of the recording(s) – the record company and motivate legal intervention. The decision to proceed, or not, would vest with a record company. It should be noted that the artist's consent is not an issue, as the artist is not the rights holder/owner of the sound recording,” said Gilfillan.

He said that a copyright complaint by an artist does not necessarily mean an infringement has occurred. However, that complaint is a catalyst for a process that will establish whether the artist has a leg to stand on and prove that an infringement occurred.

“The artist’s complaint is to the artist’s record company, who in turn would be the one to open a case or not. Beyond laying a complaint with the artist’s record company, there is no other recourse. The artist is not the recording owner – this applies even if the artist owns the record company, the power vests in the record company, not the artist,” he elaborated.

While there are no challenges per se for an artist to complain to the record company or the author to complain to their publisher, Gilfillan said things such as the level of knowledge of the artist and the recording label, as well as the label's financial capacity of the record company and the will of the record company, judges, courts, and legal representatives who are not knowledgeable in respect of the copyright law in South Africa among other things, might be where challenges arise from in a copyright battle.

“To prosecute a copyright law matter is no walk in the park, and the only party that can pronounce copyright infringement is the court. Claims and complaints do not amount to infringement,” he added.

He said that the strength of the evidence in terms of the law would determine the outcome of a copyright case. Even then, pronouncing copyright infringement is no easy task – apart from the legal forensics involved, a detailed musicologist investigation would need to be conducted.

“In terms of a civil action, a claim for damages (often determined from the reasonable royalty) – if there is a reason for the Judge to take the infringement further, the common law copyright law regime countries apically allow for up to three times damages. South Africa falls under over 140 countries listed with World Intellectual Property Organisation (WIPO) and does not have punitive damages,” Gilfillan said.

Moreover, Gilfillan explained that other 25 countries, including the US, provide for punitive damages — for example, in the US, it is $30 000 per offence if one did not know the copyright was being infringed, and $150 000 per offence if the infringer knew that they were violating the copyright.

Below are some of the famous copyright infringement cases:

After the success of her single “7 Rings”, Ariana Grande was accused of violating copyright in 2020. Josh Stone, better known by his stage moniker DOT, alleged that the words and beat of Grande's song were lifted from his song “You Need It, I Got It”. Grande made an out of court settlement.

DJ Lag accused Gqom duo, Distruction Boyz of stealing his song “Trip to New York” and renaming it “Omunye” in 2018.

In 2016 David Bowie and Queen sued Vanilla Ice because the bass line in “Ice Ice Baby” was a replica of “Under Pressure”. Vanilla Ice claimed they were different when he added one other beat. The judge found in the favour of Queen and Bowie, and Vanilla Ice was ordered to make an undisclosed payment.

In 2016 Marvin Gaye's estate took Robin Thicke and Pharrell Williams to court, claiming that the pair sampled Gaye's “Got to Give It Up” hit in their song “Blurred Lines”. Gaye's estate won the case.