As the media landscape is still stuck in a heated discussion over Team Eternity’s hit song ‘Defe Defe’ and its possible copyright infringement, an Intellectual Property Rights lawyer, Emmanuel Kantam Duut, has provided valuable insights into copyright laws and the potential ramifications for artistes and producers involved in such disputes.
In May 2024, Ghanaian Gospel group, Team Eternity took the Ghanaian airwaves by storm with the release of their smash hit ‘Defe Defe.’
The song went on to dominate the charts of various streaming platforms in Ghana and quickly made Team Eternity a household name.
However, their domination quickly became marred by controversy.
Barely a month later, on June 24, 2024, renowned music executive and producer, Kwame Mickey, in a Facebook post, accused Team Eternity of copyright infringement for adapting the lyrics and chorus of a song with the same name that he produced.
This quickly sparked conversations, with many defenders talking about the issue.
To shed light on this, GhanaWeb’s Isaac Dadzie sat down with Emmanuel Kantam Duut, to discuss what constitutes copyright infringement and all matters associated with it.
Firstly, what rights are being infringed upon?
To make a copyright claim, one would have to prove that he/she actually owns the right to whatever has allegedly been infringed upon.
Music is composed of various components that come together – from the beat to the lyrics and melody – which may be owned by different people.
According to Emmanuel Duut, “The rights involved are known as the publishing rights. So he’s specifically making mention of the lyrics or the lyrical content of his song as the executive producer. He is also referring to the composition.
“We need to know whether or not he even has the capacity to make such allegations in the matter.
That is whether or not he owns the publishing rights which include the lyrics and the chorus that he makes specific mention of.
“An executive producer does not necessarily own the publishing rights to the song.
“The publishing rights are owned by the writer of the song or the producer who co-produced the song and also the artiste involved in the song.
“He must prove whether or not he owns the rights to the lyrics or the chorus before making such an allegation.”
Thus, before Kwame Mickey can claim copyright for the lyrics, he must first prove that he has the rights to the lyrics themselves and not Osuani Afrifa, who actually wrote the song.
What exactly did Team Eternity do wrong?
To first understand copyright, one has to understand a key phrase, “Derivative works.”
“Derivative work is defined under section 76 of the Copyright Act of Ghana, which is under the interpretative section as any work that results from the adaptation, transformation, or other translation of a particular intellectual property in a manner that constitutes an entirely different independent work,” Emmanuel Duut explains.
It basically means, ‘any work that is derived from a pre-existing work including portions or pieces of an existing work that are modified, adapted, translated, or transformed into a different new work.
“To use, adapt, or transform any pre-existing work, you need authorization from the owner of that work.”
Copyright is basically the exclusive rights owned by the owner of the work or the intellectual property to permit others to use or to prevent others from using work uniformly.
Thus, “making a public performance of someone’s work, broadcasting, communicating the person’s work to the public, the distribution of the person’s work without the person’s consent, the translation, adaptation, the arrangement or the transformation of the person’s work, or even reproduction of the person’s work without the person’s consent forms part of copyright infringement,” Emmanuel Duut adds.
“I think it’s quite clear and quite precise or straightforward, because you know the work that you have already produced or you know the work that you have created. And so it is just a matter of noticing the specific part of the work or the song. I mean, contextually, since you are talking about this ‘Defe Defe’ issue, the portion of the song that has been inculcated or used in a differently constituted independent work altogether. So once you can identify that specific portion of your work that has been inculcated or fused into a differently constituted independent work, you can claim copyright infringement in that regard. I mean, most often than not, the right thing to do is just to seek permission or authorization from the original owner of the work before you can use any portions of his or her work into a differently constituted independent work.”
What about ‘unintentional’ copyright infringement?
A major argument given was that it is possible to have used lyrics or melodies from another song heard previously without knowing, or that such phrases are used in everyday speech.
However, according to Emmanuel Duut, “Ignorance of the law is no excuse. The fact that you may not have known that this song pre-existed, or this piece pre-existed, from which you also composed your music does not exculpate you from any form of copyright infringement claims, especially if it is proven.
“So what you have to do is just to take the necessary steps to compensate the person who has brought forth such claims against you.”
“And that is why the registration of this work is very significant because if you should go to the copyright office, the copyright office will also conduct investigations to verify whether this work is derived from a pre-existing work and if there has been any copyright clearance from the original owners of the work before registration under the law or the statute.”
Theft or fair use?
In such cases of copyright infringement, many individuals use the term ‘fair use.’
However, fair use is not a defence in many cases. There are specific requirements for a work to be tagged as ‘fair use’ and allowed to go scot-free.
“Fair use is basically the limited use of a copyrighted work under certain circumstances.
“There are specific statutory requirements under which if you want to use another person’s work, you need to seek the authorization of such an individual, which includes the production of the work, the translation, the adaptation, the arrangements or the transformation of the work, the public performance, the broadcasting, the communication of the work to the public, and also the distribution of the public of originals or copies of the work that has been owned by the individual.
“Fair use could be a defence in some circumstances, but not in all circumstances.
“It could be for purposes of critique, for purposes of scholarship or education, or purposes of newscasting, etc.
“But you cannot use someone’s music in such a manner to gain profits and later claim fair use as a defence.”
In conclusion, the entire ‘Defe-Defe’ controversy has highlighted issues of proper documentation and adherence to copyright laws.
Time and again, news has broken about musicians and producers ‘stealing’ or ‘copying’ someone’s works without permission.
Whether the case goes to court or not, music stakeholders could learn from this to seek legal counsel and obtain necessary permissions before incorporating elements from existing works into their own compositions.
Feature by Isaac Dadzie