Azimio Coalition’s use of the Sauti Sol track ‘Extravaganza’.

The essence of the track ‘Extravaganza’ that premiered on the 28^th of May 2019 essentially captures the soul and spirit of the ‘ Kenyan life of the party’. The witty, authentic and heavily Kenyan-infused lyrics are undisputable attention grabbers, because if you think about it – ‘wakaita makanjo, kumbe sisi ndio huwalipa salo’ is genius!

But alas, this piece today is neither centered on the go-about of nighttime revelers, nor is it a critique of the aesthetics that are inherent in music. Bluntly, I am writing this article against the backdrop of a recent unveiling of a presidential candidate during a political campaign rally.

The song ‘Extravaganza’ by Sauti Sol & co was used during the unveiling of the chosen vice presidential candidate, Martha Karua, by the Azimio Coalition.

Unhappy with the unathorized use of their song, Sauti Sol went ahead to release an official statement detailing their objections to the manner in which the song was used. Suffice it to say KECOBO (Kenya Copyright Board) also published their opinion on the matter on their social media platforms stating that there indeed was an improper use of the song.

So, let’s talk about it.

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Kenya has entered a period of time in its constitutional calendar where we can distinctly hear the drums of elections being pounded. Unsurprisingly so, campaigns are beginning to kick off in full gear as the various presidential aspirants make their case to the people as to why they deserve to lead this great nation.

We are also acutely aware that Kenya is a young country; our median age at one point was 18 or 20. Presidential candidates are aware of this and they are therefore going to use every trick in the book to capture the imagination and attention of that age demographic; just like they did with Unbwogable in 2007 and Banjuka in 2012.

See in their efforts to appeal to the young voter, one of the strategies has always been to use popular music of the times during campaigns.

But is this legally correct? Copyright says otherwise.

So what is copyright?

Put simply, copyright is the legal protection that extends to creative expressions of ideas. The right covers certain categories of works such as:

Literary works e.g. books & novels, musical works such as songs like extravaganza, dramatics or artistic work for example stage plays;
Audio-visual works e.g. adverts, tape presentations, films, tv programs;
Broadcasts e.g. radio shows.

With respect to musical works or musical compositions, the composers of the music are typically considered the copyright owners of the work. For this reason, they have certain rights; such as – the right to call the song their own, the right to economically exploit the song and earn revenue from it, and the right to dictate who and how it can be used.

The owner of the copyright in musical work has the freedom to issue different types of licenses for different types of revenues including:

A mechanical license;
A public performance license;
A synchronization license; and
A print license.

These are all different types of license.

Why is the important for us today? Because to understand the roles of CMO’s (more specifically the role that MCSK played in all this) we must first appreciate that different types of licenses exist in music.

Collective Management Organizations ‘CMO’ such as the Music Copyright Society of Kenya ‘MCSK’ exist to issue some of these licenses and administer some of these rights on behalf of their member artists.

More specifically, MCSK collects and distributes royalties on behalf of musical composers for the public performance of their musical works. By ‘performance’ within this context we mean – communication of the work to the public. This license is usually issued to business premises that play music publicly e.g. your local kinyozi, supermarkets, restaurants after paying a license fee et cetera.

For those wondering what a license is – it is generally a permission to use something.

Therefore, the permission to perform a musical work is typically granted either by a CMO on behalf of the copyright holder, or the copyright holder themselves.

The Misuse of ‘Extravaganza’

As previously mentioned, while the Azimio presidential candidate unveiled his running mate, the song ‘Extravaganza’ was played at points during this event. This was fine given that as members of MCSK, Sauti Sol had granted MCSK the permission to issue public performance licenses on their behalf and to collect those royalties.

Where Azimio went wrong is when they made a video introducing the running mate with the ‘Extravaganza’ song in the background. This needed an entirely different license known as a synchronization license.

Why? Because when you use a piece of music on any audio-visual content what you are doing is synchronizing two different types of content into one.

Consequently, before that audio-visual content is published to the world, one needs to acquire a synchronization license from the copyright holder which gives permission to use the music and attach it to a video.

The right to authorize this rests with the copyright owners of the musical work and not MCSK.

For anyone to purport to issue a synch license where Sauti Sol had not given their consent amounted to copyright infringement of their musical work.

Just ask renowned Kenyan musician, John Katana, member of the legendary Kenyan band “Them Mushrooms”. He won a case against the Royal Media Services (RMS) and was awarded Kenya Shillings Three Million (Ksh 3,000,000/=) in damages.

It is therefore no light matter as the consequences may be very expensive.

Lessons learnt

You can probably think about how in various ways in our daily lives we witness copyright infringement, often times unwittingly by the infringer.

Here therefore, is a case perhaps to take copyright infringement more seriously and give credit or in this case ‘license fees’ where it is due.

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