The 2020 documentary titled ‘Afrobeats: The Backstory on Netflix’, credits the origin of Afrobeats to Ghana and Nigeria.[1] The music genre known as highlife is peculiar to Ghana with the likes of Kojo Antwi, Amakye Dede coming to mind. This is because, from the accounts of Arts scholars, researchers and even musicians, Highlife is the root from which Afrobeats was birthed.[2]
In the early months of 2018, the song – ‘Angela’ received massive air play and that ushered Kuami Eugene, a young Artiste, into the Ghanaian music scene. He was a refreshing new face in the music industry. Perhaps what made him stand out was not just his youthful exuberance but the style of music he adopted – Highlife.
Although Kuami Eugene’s entry into the music scene was welcomed, one thing many observed about his craft is the striking similarities with others’ work. He has, in various interviews, explained the apparent infringement of others’ work as he merely taking inspiration from such works. [3] This observation forms the bedrock of this article. The focus of this paper, thus, is to analyse the infringement of musical works in Ghana, the adequacy of Ghana’s Copyright Act to protect musical works, and measures that Ghana may take to have an efficient legal framework on the protection of musical works. It will also highlight, briefly, on the various parts of the creative activities which together constitute musical work and how copyright protects such works.
This Article has therefore been compartmentalised into five parts- Part A discusses briefly, what constitutes music – with emphasis on its conceptualisation, writing, arrangement, recording and performance. Part B introduces the reader to the concept of copyright as it pertains to musical works. Part C examines the artistic works of Kuami Eugene, Becca, Mr Drew and Burna Boy. Part D details what constitutes copyright infringement as it pertains to music. Part E proposes solutions to the disregard for copyright in the music industry.
Part A
The final work consumed as music is a product of many parts. In some cases, the music (that is, the beat or instrumentals) is first created by a producer (usually called a sound engineer), and sent to the musician (a composer) to write and arrange his work on the instrumentals. In some cases, the composer can also be the performing artist, providing their own vocals or playing instruments unto the final recording. Alternatively, the composition might be licensed or assigned to a different performer who does volcal addition which ends up as the final recording. Regardless of who performs the work, all creatives involved in this process retain various intellectual property rights.
As the music business grows, the various parts on which it runs are getting nuanced and more complicated. For instance, in a recent interview, Kuami Eugene confirmed that he wrote many songs for MzVee[4]. This was confirmed by MzVee in a subsequent interview[5]. According to Akwaboah, another prolific vocalist and songwriter, he wrote over 90% of Sarkodie’s highly successful ‘Mary’ Album[6]. Contractual interventions are used to secure the interests of all contributors in a musical work. Sadly, this hasn’t gained prominence in our part of the world, hence it is not uncommon to hear song writers using phrases like ‘I wrote for him/her without taking a dime’. A classic example is how Joyce Blessing was gifted the song ‘Victory’, currently one of the biggest songs in Ghana, by Kuami Eugene[7]. In this instance, after writing and producing (recording the instrumentals), Kuami also directed the music video of the song for free!
How this still persists in the face of such rapid growth in the music business especially with the dominance of paid, streaming services, is surprising. For instance, the music subscription market is set to swell to USD 73.57 billion by 2028, a massive increase from USD 28.2 billion in 2021[8] Musicians with proper management structures usually use split sheets to secure their percentages and interest in their musical work. This is an enforceable agreement that protects contributors to a musical work This split sheet performs two key functions. It first protects those who contributed to a song: This includes songwriters, composers (melody creators), and sometimes even producers if their contribution is substantial. The second significant function of a split sheet is how it clearly outlines ownership percentages: The split sheet specifies what percentage of ownership each contributor holds of the song. This percentage determines how much each person gets from royalties and other revenue generated by the song.
It even gets more complicated with current trends. These days more than three producers can work on a single song. All of them own a bit of the song. This is the same with song writing. Aside features, where one or two persons perform on the same song, many writers sometimes contribute to a single verse of a song. The ideas and intellectual property rights of all these persons ought to be protected.
Part B
Copyright is property right. It can be likened to the rights a person acquires in a physical property, although that of Copyright is intangible. Authors of original literary, artistic, musical work, sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions gain copyright protection over their works.[9]
Copyright offers creators of literary and artistic works protection for their work and the exclusive right to exploit their work economically. The protection Copyright law offers to creatives is in two parts- moral rights and economic rights[10].
Economic rights offer the author of any protected work the exclusive economic right to do or authorise:
the reproduction, the translation, adaptation, arrangement or any other transformation of the work
The public performance, broadcasting and communication of the work to the public,
The distribution to the public of originals or copies of the work by way of first sales or other first transfer of ownership, and
The commercial rental to the public of originals or copies of the work[11]
Moral rights, in addition to the economic rights, offers the author of the protected copyright work the sole moral right to :
claim authorship of the works and the appropriate mention when any parts of the protected work is reproduced, translated, adapted, arranged, or transformed in any way and;
to object to any distortion or mutilation or other modification of the work.[12]
In the recent controversial sampling of parts of Musician Obrafuor’s “Oye Ohene” (Remix) by Canadian Rapper Drake in his ‘Calling My Name’ song, which led to a $10m lawsuit: the following legal issues arose[13]:
Obrafuor’s original song featured a catchy two-sentence chant, “Killer cut blood. Killer cut,” performed by Nii Mantse. This short vocal hook became a defining element of the song. It’s no wonder Drake wanted to sample it in his own track. However, a legal dispute has arisen. While Obrafuor owns the entire song, Drake used the portion performed by Nii Mantse without permission (according to Obrafuor’s lawsuit filed in New York). Obrafuor claims he never granted permission despite Drake’s team contacting him before the song’s release on June 17th, 2022.
Adding another layer of complexity, Nii Mantse argues that since his voice on Obrafour’s song is what featured in Drake’s song, he should own that specific part. This case highlights the importance of clear agreements between collaborators and contributors to a musical work, to avoid such legal battles
Did Nii Mantse enter into a split sheet agreement, specifying the percentage of the song he owned, no matter how minute? Was he remunerated by Obrafuor for his performance? In this instance, Nii Mantse may possess certain moral rights, such as the right to attribution and the right to object to derogatory treatment of his contribution. Nevertheless, Obrafuor, in his capacity as the song’s owner, retains exclusive economic rights over the work, including the right to reproduce, distribute, and publicly perform the composition.
For example, if Nii Mantse had signed a split sheet outlining that he contributed 1% of the vocals in the song, he would be entitled to 1% of any royalties or proceeds generated from the song’s usage. Additionally, if Obrafuor had compensated Nii Mantse for his performance, this could serve as evidence of a contractual arrangement between the parties. Nii Mantse, in this case, may have some moral rights here, but Obrafuor as the owner of the record has all its economic rights.
From the Copyright Act (2005) Act 690 (Hereafter referred to as The Act), Nii Mantse is only entitled to a claim ofauthorship of the work and in particular to demand that his name or pseudonym be mentioned and to object to and seek relief in connection with any distortion, mutilation or other modification of the work where that act would be or is prejudicial to his reputation or where his work is discredited by Drake[14].
According to the Berne Convention, Moral rights add on to economic rights by offering the author of any protected work the sole moral right to claim authorship of the work and the right to object to any mutilation, deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author’s honour or reputation.[15]
The Act was enacted in 2005 to replace the Copyright Law, 1985 (PNDCL 110) to bring provisions on copyright and the Copyright Office in conformity with the Constitution and to provide for related purposes.[16] This was also done to protect creators and creatives from unlawful appropriation of their intellectual creations.
The list of items entitled to copyright protection are as follows[17]:
Literary work;
Artistic work;
Musical work;
Sound recording;
Audio-visual work;
Choreographic work;
Derivative work; and
Computer software or programmes
For a work to be eligible for copyright protection, it must satisfy the following requirements:[18]
Original in character;
Fixed in any definite medium of expression;
Author or creator being a citizen or a person ordinarily resident in the Republic of Ghana;
First published in the Republic and in the case of a work first published outside the Republic is subsequently published in the Republic within thirty (30) days of its publication outside the Republic or,
A work in respect of which the Republic has an obligation under an international treaty to grant protection
Originality, one of the key essential requirements of any musical work, has a different meaning attached to it depending on the jurisdiction. In countries that follow the author’s right system for instance, originality is more concerned with the manner in which the work was created and is usually taken to require that the work in question originated from the author, its creator, and that it was not copied from another work[19]. In Ladbroke (Football) Ltd v William Hill (Football) Ltd,[20] Lord Pearce said that the word ‘original’ requires: only that the work should not be copied but should originate from the author.
In the US, for instance, under the Copyright Act[21], ideas alone are not protected. The act states therefore that: “in no case that copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”[22]. The above statutory provision has found reinforcement in case law. Thus in Warners Bros Inc v American Broadcasting Companies Inc[23], the Learned Judge while quoting Holmes v Hurst[24] noted that “in the case of literary works, it is axiomatic that copyright protection only extends to the expression of the author’s idea, not to the idea itself”.
In Feist Publications, Inc v Rural Telephone Service Company, Inc[25] the Supreme Court of the United States speaking on what constitutes ‘’originality’ clarified that the work must be ‘independently created by the author”. “The work for which copyright protection is sought must ‘owe its origin’ to the putative copyright holder”- Burrow-Giles Lithographic Co v Sarony.[26] Additionally as noted in the Feists Id, the work must ‘possess at least some minimal degree of creativity”. Further, in the case of Harper & Row[27], it was noted that “…copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”
The test for originality in Ghana is the ‘’independent effort test” which is captured in Ghana’s Copyright Act as: “…a work is original if it is the product of the independent effort of the author”[28]. Though Ghana’s Copyright Act does not define what constitutes ‘independent effort”, it can be understood to mean that the person did not base his/her work on any existing work.
Music producer Kwame Mickey is locked in a copyright dispute with the gospel group Team Eternity. The issue? Whether Team Eternity’s hit song “Defe Defe” copies a significant portion of an older song with the same title. This older song, written by Osuani Afrifa and performed by Hallelujah Voices, does appear to share some elements with the new version.
However, those advocating for Team Eternity argue originality. According to this school of thought, their “Defe Defe” features new verses, including a rap section, and fresh instrumental arrangements. This issue highlights the gray area in copyright law: how much similarity constitutes copying? Perhaps a clearer definition of “independent effort” in an amendment of the copyright Act could help resolve such disputes
To prevail on a copyright infringement claim, a plaintiff must show that:
(1) he or she owns the copyright in the infringed work; and
(2) the defendant copied protected elements of the copyrighted work[29].
A copyright plaintiff may prove copying with circumstantial, rather than direct, evidence.[30] “Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had ‘access’ to the plaintiff’s work and that the two works are ‘substantially similar.’ ” Id. (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996).
In another recent copyright controversy between Rotimi, a Nigerian-American musician and Mr Drew, on the latter’s song ‘Eat’ featuring Stonebwoy, which was taken down from YouTube and from all streaming platforms due to its adaptation of the former’s song ‘Love Riddim’[31], it was observed that although Mr Drew had properly acknowledged Rotimi as the author of the song, he sought to exploit from the song economically without having the economic rights to the song. Economic exploitation here will include the revenues the song would have accrued on YouTube and other online streaming, hosting and downloading stores if it had not been taken down. At the time the video was removed from YouTube, it had garnered over 100,000 views which translates into an equivalent of over $12,000 (considering the fact that the views were accumulated in less than a week):[32]
Duration of Copyright in individuals
Economic rights are protected during the life of the author and seventy years after the death of the author.[33] This therefore means, the estates of dead musicians like Micheal Jackson and Terry Bonchaka, could continue enjoying benefits accruing from their works for a period of seventy years after their death.[34] In the case of a jointly authoured work, the economic rights of the authors are protected during the life of the last surviving author and seventy years after the death of the said author[35]. In a recent interview, Cina Soul mentioned that Kidi wrote about 80% of her song ‘Feelings’[36]. Unless Kidi clearly opts to cede his interest to Cina Soul, this is an example of a jointly owned work.
The durations mentioned aligns with the terms set forth in the Berne Convention, to which Ghana is a signatory. The key distinction lies in the stipulated duration; the convention designates a period of 50 years[37], whereas the Act specifies 70 years.
Part C
This section focuses on cases where prominent Ghanaian musicians have incorporated music from other artists without duly acknowledging or obtaining proper permission. It will end with the case of Burna Boy and how he shares his revenue with original copyright owners, even after acknowledging them.
After the release of ‘Angela’ in 2018, Kuami Eugene kept his fans glued to his craft with the release of his next song‘Confusion’. The video featured the beautiful Ahuofe Patri and Micky Osei Berko aka Master Richard of Taxi Driver fame. The rhythm of the song, word play and the Music video made the song an instant hit. Indeed, the song was an easy sing-along and was massively played on radio and at shows. It enjoyed both commercial and popular success.
The success of Confusion on the music charts did not absolve it from the controversies that followed. Like its name, the song left several doubts in the mind of Ghanaians as to its originality. Not long after the song’s release, a Malian Artist by name Sidiki Diabaté claimed that Kuami Eugene sampled both the beat and rhythm from his song ‘Fais moi Confiance‘.[38] Comparing Sidiki Diabete’ ‘Fais moi Confiance‘, and Kuami Eugene’s Confusion showed similarities in the rhythm and style of the music. Kuami Eugene’s Confusion was a mere adaptation of Sidiki’s ‘Fais moi Confiance‘ and an infringement on the his economic rights of Sidiki’s work.
Additionally, Kuami Eugene was accused of copying lyrics for his ‘Wish Me Well ‘song from Nigerian rapper, Ice Prince. According to reports, the rap line “mu keka me ho nsem like I recorded with a stolen mic” was taken from Ice Prince’s ‘In the Morning’ song which originally states “‘People will be dissing me like I record with a stolen mic”.[39] Then came his verse on the song ‘Aku Shika’ which was sampled from a song titled ‘Ragamuffin’ by a female Jamaican Dancehall artiste, Koffee.
Shifting our focus to Becca’s ‘No One’ featuring Busiswa of South Africa, one cannot help but notice the striking similarities with Sho Madjozi’s ‘John Cena’[40]. For an Artist who marked her 10th year anniversary in the music industry in 2021[41], with several awards to her credit, it is disappointing that her team did not seek clearance before her sampling Sho Madjozi’s song.
Other forms of copyright infringement occur where an unknown Artist’s song is given to a well-known Artist to perform. This is the case of Shatta Wale’s ‘My Level Song’. The release of this song which became an instant success suffered a myriad of controversies. An unknown Ivorian Musician identified as “Benardio Oneside” claimed the song as his. Indeed, listening to his version and the fact that he had worked prior with the producer of Shatta Wale left one with little doubt that indeed he might be the original composer of the song. Afterall, the style and genre of the “My Level” song did not look like the usual style of Shatta Wale’s music. It is thus not a wonder that for a musician who touts himself as the Dancehall king, the song will earn him an award as the Highlife song of the year at the 2019 edition of the Vodafone Ghana Music Awards[42].
One key factor in determining if a later work mirrors that of an earlier work is to determine the accessibility of the prior work. Factors such as the date of release of the prior work and the producer of the plagiarised work aid one’s determination of whether a later one is a plagiarised work of the former.
The proliferation of internet usage and the accessibility of music, facilitated by a widespread adoption of mobile devices, have made it easier than ever to consume music from around the globe. Furthermore, modern technology has streamlined the process of sampling and modifying musical compositions. Consequently, there is heightened temptation to draw from the musical creations of other artists without the right authorization.
Nigerian musician Burna Boy has also faced allegations of consistently sampling the works of other musicians. His song ‘Last Last’ from his globally acclaimed and commercially successful ‘Love Damini’ album, released in 2022, incorporates elements from American singer Toni Braxton’s 2000 single “He Wasn’t Man Enough”. The song’s writers, LaShawn Daniels, Harvey Mason Jr., and brothers Fred Jerkins III and Darkchild, are duly credited for their contributions to the song. In an interview with Wallo267 and Gillie Da King, Burna Boy mentioned that Toni Braxton is entitled to 60% of the song’s royalties![43]
On his current ‘I told them’ album, Burna Boy again samples Brandy’s ‘Sittin on Top of the World’ in his song ‘Sittin on Top of the World’ remix featuring American rapper 21 Savages.
It is important to highlight, however, that unlike the cases previously discussed, Burna Boy adheres to the proper procedures to acquire appropriate permission before sampling these works. It is therefore not surprising how Brandy performed beautifully with Burna Boy and 21 Savages at the 2024 Grammy Awards, to global admiration.
Part D
Copyright Infringement and enforcement of rights
Perhaps, one of the most efficient ways to curb the surge in copyright infringement in the music industry is enforcement through legal action in the courts.
Farwell, J in the old case of Donoghue v. Allied Newspaper Ltd[44]. stated that “there is no ownership in ideas, but copyright provides a property interest to the person who puts the idea into written form”. Copyright law only protects the way ideas are expressed in a particular creation, but does not protect the underlying idea, procedure, method of operation, mathematical concept or system involved. Protection for such items may be possible either under the patent law or as trade secrets, if the relevant conditions are fulfilled.[45]
Most of the controversies and claims by artists remain just social media claims without any legal steps to assert their rights. Since this fades after a week or two, it is not deterrent enough, it therefore greatly encourages the continuous copying of works of other musicians without permission.
Remarkedly, in the year 2023, Amerado, a budding artist released the song titled “ Kwaku Ananse” which received the award for the Best Highlife Song at the 2024 TGMA Awards[46]. This Award, which pays testament to his creative prowess, may have been given to him in error going by the controversy surrounding the song. An artist named Kwame Yogot laid claim to the song and accused Amerado of infringing his rights in the song.[47] While one would have expected that Kwame Yogot would have taken legal steps to institute a copyright infringement suit, his claims remain just a social media call out without more.
An Artist who understands, to some extent, and upholds his rights under the Act is veteran Hiplife musician, Nana Kwaku Okyere Duah, alias Tic formerly known and referred to as Tic Tac. Even though a Brand Ambassadorial deal he had with Melcom expired, the retail giant kept using his images for their advertisement. A suit he brought against them resulted in a judgement of Ghc300,000 in his favour[48]. Interestingly, while legal scholars, especially those who value the reach and effect of copyright infringement hailed him for enforcing his right under the law, a section of Ghanaians also saw him as ungrateful and greedy for suing a brand he had previously worked with. Some even claimed his suit will discourage such brands from engaging Ghanaian creatives in the future.
Though not music related, the recent case of Awindago v Martin Kpebu, clearly spells out the extent the courts will go to ensure that intellectual property rights are protected[49]. Ackah Boafo JA in that case emphasised that copyright law is a matter of public policy to ensure that the work and ideas of individuals are protected.[50]
A more recent instance where the intellectual property right of a musician ended up in the court, is the current suit between Ghanaian music Producer and journalist Kwabena ‘Spiky Beats’ Ofei-Kwadey Nkrumah and the Confederation of African Football (CAF) after the latter used his music composition without his authorization. Nkrumah claims that by “transmitting the said promotional materials globally and on all first defendant’s social media platforms at commercially viable airtimes, defendants were assured of maximum viewership and incomes by way of maximum sponsorship while the plaintiff who invested so much time, energy and resources to compose and produce the said beat/instrumental music lost the opportunity to exploit his copyrighted work for both economic benefits and recognition and was rather ‘left with the short end of the stick’.”[51] In a landmark decision delivered by Justice Emmanuel Loddoh of the Commercial division of the Accra High court, the Confederation of African Football has been been ordered to pay the music Producer damages of $250,000 and legal cost of Ghc40,000, as compensation for exploiting his musical works without his authorization. The court did not end at the monetary damage, but went further to injunct the continental football body and instructed the removal of all infringing materials from all their social media platforms. Spiky Beats, reacting to the ruling, said the legal battle and subsequent ruling is a win for the numerous other producers whose creative works have been stolen or illegally used without getting appropriate or any compensation.[52]
The problem has been the refusal by creatives to resort to the courts for protection of their rights. It is worryingly common to see such serious matters dominating social media conversation. They therefore fade out in days, leaving most of such disputes unresolved.
PART E
The easiest solution from the last part is the resort to the law courts for the enforcement of intellectual property/ copyright breaches. It is clear the courts in Ghana, from Tic Tac’s case, Awindago vrs Kpebu and now ‘Spiky vrs CAF’ will enforce such breaches and infringements if a good case is made.
This begs the question of what a good case entails. It starts from professionalism. Most musicians and composers in this part of the world unfortunately treat their craft with little to no seriousness. They usually interpret the worth of their creativity in the now, forgetting that it is a valuable asset which can outlive them. As a result, most musicians instead of hiring the right people to protect and secure their copyright, still work with family and friends who only follow them around.
Professionalism here, therefore, means, before a sound engineer, musician, composer or performer contributes to any music piece, a contract must be signed which defines a split sheet detailing how future revenues should be split.
In these times where simple songs can become instant hits, no musical work must be released without the right of its producers being properly protected. Songs like Patapaa’s ‘One Corner’ and ‘Gangnam Style’ by Korean PSY which by the beginning of this year had earned over $8million from YouTube revenues alone, show that any song could be successful[53].
In an interview with Joy Fm’s entertainment review program, Ghanaian composer and musician Kwabena Kwabena said he usually takes no money when he writes songs for other musicians[54]. This has been the case of Kuami Eugene, who though accused of many copyright infringements, has written some of the biggest songs for musicians like MzVee, Joyce Blessing, Becca and Adina[55]. This is most unprofessional and shocking. What if these songs become global hits? Will he now sue for his part of the earnings? How will he be protected when he has confirmed publicly that he gives such songs out for free?
Creatives must therefore get the right lawyers and management to protect them. After all, the estates of dead musicians like Micheal Jackson, Elvis Presley, Bob Marley , Prince and John Lennon are more valuable than some of the most successful living musicians of this generation[56]. This is because these dead musicians, while alive, protected their works.
