Hubert Nakitare, also known as Nonini, on Thursday, March 23, won a Ksh1 million case against a Japanese-based electronics company and a social media influencer at the Milimani Law Courts, Nairobi.
As one of Kenya’s most famous music artists, he is now building a reputation as an intellectual property rights defender.
In July 2022, he shared a demand letter to the two parties after he saw an advertisement on social media in which one of his songs was used.
In the short video advertisement, his song “We kamu” (just come) was synchronised to the video of the actors in the advert. The short video triggered a legal battle that will affect the social media-influencing landscape for years to come.
"A synchronisation license is required no matter how small a portion of the song you use, especially for commercial purposes," Nonini said.
What is Synchronisation License?
A synchronisation license is an agreement between a user of music and a music owner, many times the artist or copyright holder, of a copyrighted composition, in this case a song, that grants permission to release the song in a video format.
The videos could be for social media like Facebook, and Instagram or for video-sharing platforms like YouTube.
Peter Smith of Legal Zoom, a legal consultancy firm, advises that any visual media content that has an artist’s music requires a synchronisation license.
The copyright holder in this case, the musician, may require payment from the licensee to agree to the synchronisation license.
It is prudent for the user of the video to seek written permission from the creator of any content before using it. This is especially true if the content will be used for commercial purposes.
Conversely, there is no legal basis that forces intellectual property owners from agreeing to sign a synchronisation license. Some may not agree to the deal even if they will be paid.
It could be that they want to retain full control over their content. They could also not want to associate with the one requesting the synchronization rights. Reasons include maintaining a certain brand image and if they have already signed a similar deal that stipulates that they should not enter into a similar deal with another company.
A synchronisation license should be secured before the distribution of content. Because one of the license deals might be denied, it is advisable to have a second option. One risks being sued for using content without a synchronization license.
In the age of social media influencing, this landmark ruling has set a precedence and may lead to more litigation. Artists will know they have a recourse when their intellectual property is infringed on and brands will be careful not to abuse artists’ copyrights.