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Title: Albert Gacheru Kiarie t/a Wamatitu Productions v Simon Muiruri Kirehu t/a One Stop Nduti Music Store
Venue: High Court (Nairobi)
Case ID: HCCC No. 566 of 2003
Authoring Judge: Joyce N. Khaminwa
Date of Decision: 23 September, 2008
Plaintiff(s): Albert Gacheru Kiarie t/a Wamatitu Productions
Defendant(s): Simon Muiruri Kirehu t/a One Stop Nduti Store
Keywords: Copyright, infringement, music

Facts
The plaintiff carried on business of production, distribution and promotion of music. He had produced the music of a number of artistes and recorded the same in the form of cassettes. The plaintiff claimed the defendant had infringed on his copyright by reproducing the recorded music and sold the music in the form of CDs. The defendant in his defense stated that he had entered into agreements with the original music composers. He therefore had the right to reproduce the music.
The plaintiff sought damages and injunctive orders from the court

Issues
Whether the defendant had infringed on the plaintiffs’ copyright.

Holding
The court held in favour of the plaintiff and granted the injunction. The court considered the plaintiffs evidence of the cassettes he had produced and found it satisfactory in answering the question of whether the defendant had infringed the plaintiffs’ copyright.
However, the court ordered for an assessment of damages in order to determine its award of the same.

Cases Cited
None

Ruling
Albert Gacheru Kiarie a businessman carrying on business in the name of “Wamatitu Production” filed this Plaint originally on 15/9/2003. The Plaint was served and amended on 24/2/2004. The defendant filed statement of defence and amended defence and counterclaim on 12/8/2005. The counter-claim claims that the Plaintiff has claimed to hold rights to produce, market and distribute music works by stated artistes and the plaintiff’s claims have caused great loss of business and he claims damages.
On the day fixed for hearing of the suit which was by consent of both parties the defendant or his advocate did not appear. The plaintiff proceeded to prove his case. His evidence on oath was that he carried his business of production, distribution and promotion of music at Three Ways House, Room 307, Luthuli Avenue. His claim was against the defendant for infringement of the copyright music recordings he had recorded which they had reproduced without his permission. The plaintiff had already acquired by transfer of the copyrights. The copyright agreements are exhibited between Jane Nyambura Kinyua alias Queen Jane  OF Queenja Les Band. The consideration for transfer is stated and the rights sold are specified namely; to produce and/or reproduce the said songs in any form compact disc music cassettes, gramophone records or in any manner at his own convenience and discretion can damage the titles to any songs if need be without reference to any person.  The artiste agreed not to interfere with the production or distribution of the songs. The agreements are numbered and exhibited Exht. 1-18. The plaintiff first reproduced the songs into cassette titled Mwendwa K.K. and NDI MUNOGU all the rights transferred to the plaintiff by the artiste Jane Nyambura alias Queen Jane.
The defendant has reproduced songs from these two cassettes into CD’s without the authority or permission of the plaintiff. The defendant has similarly reproduced songs by Shari Martin from four cassettes into two CD’s containing therein with his other popular songs from the producers without the authority of the plaintiff.
The plaintiff’s cassettes were tilted
(1990) Tangazo la Ajabu
(1992) Dunia Limeisha
(1992) Christmas-Christmas
(1996) Nimekutambua Shetani
The Defendant also without the Plaintiffs’ authority reproduced plaintiff’s cassettes into CD’s named;
“The best of John de Matthew songs by Mary Wambui”
“Cassettes Peris Nduku 1998”
“Mathiko ma Peris Nduku (1998)”
“Ahadi ya Bwana (1990)”
“Ntaingia Lango Lake (1996)”
“Songs by Mary Wanjiru Ndore”
“Cassettes Ngwihitha thakameini ya Jesu”
The plaintiff pleads that by the act of the defendant in making the reproductions of these cheap CD’s the plaintiff’s market for the original cassettes has been taken over by the defendant and the plaintiffs’ business has been destroyed and plaintiff’s investment in purchasing these compositions from the artistes has resulted in loss.
The plaintiff therefore seeks injunction against the defendant from infringing in the listed and sale of the CD’s. The plaintiff claims special and general damages, costs, loss of profits, loss of royalties, punitive and exemplary damages, and that the defendant do submit all material in his possession and that there be an inquiry as to damages.
In answer to these claims the defendant pleaded that he is a music retailer, distributor and has marketing and distribution agreements with many composers and publishers among them Jane Nyambura alias Queen Jane, Shari martin who are composers of the songs mentioned in the suits. The defendant denies having reproduced any songs by John Mwangi alias Ndemethiu and Mary Wambui and Mary Wanjiru Ndore alias Mary Githinji. The defendant denies privity of contract between him and the plaintiff. The defendant counterclaims for loss of business and damages and profits. As stated above the defendant failed to appear for hearing. Therefore no evidence was led to support his defence and counter-claim.
The evidence adduced in court by the plaintiff is that he produced and then the defendant took them converted them into CD’ s and started selling them. The plaintiff demonstrates by playing the cassettes and CD’s he is complaining about and shows the court actual covers of the actual music. The defendant used the shell copy and produced for example CD Mwendwa K.K. by Queen Jane and had sold the same without permission.
The defendant lost sales because the consumers changed from cassettes to CD’s and the defendant was selling cheaply. The cassettes were selling at 80/= on wholesale and 150/= on retail but when the defendant released the CD the prices in the market were 500/= wholesale and 800/= retail. The defendant was selling the CD’s at 150/= wholesale and 180/= retail therefore because of the cheap prices the plaintiff lost sales. He denied that the defendant was given permission to copy by the original artistes. The artistes could not have done so as they had already sold their rights to the plaintiff.
Under agreement aforementioned the plaintiffs’ obligations were to provide studios for recording he was to do song editing, changing words or produce melody and he met expenses of the musicians to organize the launch and promote the songs. Of the counter-claim, he said he is the only one entitled to deal with the songs having purchased the copyright from the original artistes.
I have considered the evidence of the plaintiff and the exhibits and it is my finding that the owned the copyright of the songs complained of. Through his demonstrations in court I am satisfied that the defendant reproduced the songs from cassettes to CDs without permission or consent from  the plaintiff he sold them cheaply thus destroying the cassette sales of the plaintiff thus causing loss of business and profits.
The plaintiffs’ claim is not opposed.
The defence filed by the defendant is only a sham. The defendant admits that he dealt with some songs by the Artistes complained of but the truth is that once the original owner has transferred his/her copyright, the copyright becomes the property of another person who has the rights as the owner. The defendant knew that the cassettes were produced by the plaintiff. They were labeled.
The remedies for a plaintiff who claims his copyright has been infringed are damages, injunction accounts or other relief available, delivery up to the plaintiff for destruction or for his benefit of any article which appears to be infringing copy or any article used or intended to be used to making any infringing copies, damages calculated on basis of reasonable royalty which would have been payable by licensee in respect of type of work concerned taking into consideration the amount which the claimant would have earned in profits if he had been in charge of the work in question.
In this case the plaintiff applied and was granted an interlocutory injunction on 6/4/2004. The order was re-affirmed by a further court order made by the court on 23/7/2004 directing court bailiffs to visit shops in Nairobi Business District to determine the level of sales and distribution of CDs. It is not clear whether the bailiffs did file the report as ordered.
From the evidence before the court and the pleadings filed by the parties the defendant is clearly liable for infringing the copyrights of the songs pleaded which are held by the plaintiff. He was well aware of the plaintiff’s rights as the same carried sufficient information to indicate the producer of the cassettes from where he converted to CDs. I hold him liable.
On issue of remedies, it is clear the plaintiff is entitled to injunction. The record shows that since 6/4/2004 the defendant should not have been dealing with the songs as complained of. I confirm the injunction in terms of prayer 3 (a) of the plaintiff.  Regarding loss of business and profits and damages and royalties claimed, I find no sufficient evidence to enable the court to reach a fair assessment of the same. I therefore order an inquiry into damages to be undertaken before the Deputy Registrar of this court. The inquiry shall take into account the claims made under prayer (b), (e), (f) and (i) in the plaint.

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