By Ogova Ondego
Published April 30, 2020
Anthony Musembi, a popular gospel musician in Kenya, has been accused of theft.
Musembi, who also doubles up as a pastor in the Rift Valley town of Nakuru some 240 km out of the Kenyan capital, Nairobi, may not have had any idea of the amount of fury his decision to record and publish on YouTube and Facebook a cover version of the well-loved song, Todii by the late Zimbabwean musician Oliver Mtukudzi, would generate.
But the reaction was swift and furious. Media headlines screamed:
- ‘Thieving’ Kenyan singer: nehandaradio.com
- Kenyan musician torches storm over Tuku: herald.co.zw
- Antony Musembi in trouble for infringing on ‘Todii’ song: the-star.co.ke
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The Zimbabwe Music Rights Association (Zimura), in an interview with The Herald newspaper of Harare, has condemned the Kenyan musician’s action of appropriating the late Oliver Mtukudzi’s popular HIV/AIDS-awareness song, Todii, what shall we do?, as his own, replacing the AIDS theme in Shona with a Coronavirus one in Kiswahili and publishing the song on YouTube and Facebook.
“What this guy did is very wrong. Intellectual property is important to the creator and it should not be used without permission,” Albert Nyathi, chairperson of Zimura, says. “We understand he was doing it for a good cause of fighting coronavirus, but the way he did it should be condemned. A thief cannot say I
have stolen a cow because my children were starving. A situation should never be an excuse for theft.”
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This comes hot on the heels of a statement from Tuku Music that manages the late Zimbabwean musician’s works accusing Musembi of having broken the law of copyright by recording the late Mtukudzi’s song without permission.
The statement says that:
- ‘Pastor Antony Musembi through his Youtube channel and his Official Facebook Page released a song and music video titled “Todii Cover” on April 18, 2020
- ‘We were notified about the cover version of the song “Todii” on the 19th of April 2020 and after watching it we immediately reached out to Pastor Anthony Musembi via his Facebook’
- ‘We did not get a response from him and after contacting our colleagues we managed to get his phone number and management made contact with him and we
are waiting for his official statement’ - Musembi ‘did not seek rights and permission to use the song for the Covid-19“ awareness cover version for the song’, and ‘We encourage artists to follow the correct protocols when they need to use copyright protected material to avoid unnecessary issues that can arise from violations of these protocols’.
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But just why would any one copy another person’s track, tune, beat or arrangement and risk running foul of the law and ruining one’s reputation instead of just creating one’s own original music? Where would the world have been today if every musician created ‘cover’ versions of other people’s works?
Musembi has published a video on YouTube that appears to be a copy of someone else’s song save for the words and the title. The video, titled Natamani Wamebarikiwa, sounds suspiciously like Mary Atieno and Alex Ominde’s Amebarikiwa that is also on YouTube. Who copied the work of the
other?
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Just how do supposedly reputable mainstream or legacy media like BBC, Standard or Citizen TV promote what could be described as ‘pirated’, ‘plagiarised’ or ‘contraband’ works on their platforms, going as far as describing those who desecrate intellectual property rights of others as ‘national sensation’ as
Standard says of a 10-year-old pupil whose Janga la Korona is built on the musical arrangement of a well known song on Kenya’s struggle for independence from Britain called Wimbo Wa Historia.
“A Class Six pupil has become a national sensation after she composed a song on coronavirus,” Standard newspaper of Nairobi reports about a girl called Salome Wairimu whose video has also been played on Citizen TV.
“I wrote the song as a composition now that we are at home after the schools were closed indefinitely following the first case of the disease in Kenya. But when my parents went through it, they were mesmerised by the message and asked me to compose a song instead,” Standard quotes Wairimu as having said.
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Like Musembi who gives credit to his 12-year-old daughter for having composed the Ooh Corona, Standard credits 10-year-old Wairimu with the composing of Janga la Korona. But unlike Musembi who, in the BBC interview, utters no word about Todii, HIV, AIDS, Mtukudzi or Ooh Corona being a ‘cover’ version, Standard says Janga la Korona ‘borrows the tone of the freedom song, Wimbo wa Historia.’
Saying ‘Many musicians are doing’ what Musembi did, Nyathi says Zimura and he ‘want them to know that theft of intellectual property is a serious crime’.
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Oh, here are excerpts from an interview ArtMatters.Info had with Musembi:
Ogova ondego (OO): Hello. Is that Anthony Musembi?
Anthony Musembi (AM): (Hesitates) Speaking.
OO: I am Ogova Ondego with ArtMatters.Ino. I’d like you to respond to media reports that your recording of a song by Oliver Mtukudzi has generated some
controversy.
AM: There is no controversy known to me. This is a simple cover version of the song
OO: Really? What’s a simple cover version?
AM: What do you understand by cover?
OO: I don’t know; that’s why I am asking you.
AM: What do you want me to tell you?
OO: Have you infringed Oliver Mtukudzi’s copyright by using the track of the song ‘Todii, What Shall We Do?’ without permission?
AM: (Hesitates. Silence) When I have clear information on this I’ll get back to you sir. (Hangs up)
OO: (Calls).
AM: (Rejects call)
AM: (Calls after about 2 – 3 minutes). We did a letter to Tuku Music. We are in the process of doing another cover version with Tuku’s daughter. My agenda
was to educate the public on Coronavirus, not to make money. His daughter has reached out to me for us to do a new song together
OO: Oh …
AM: We chose a song that is familiar to the public. Tuku Music wanted a letter which I did. I am not monetising the song.
OO: But did you not break the law of copyright by recording someone else’s song without permission?
AM: I am not conversant with copyright issues.
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OO: I have watched your Natamani Wamebarikiwa video that sounds suspiciously like Mary Atieno Ominde’s Wamebarikiwa wanaotafuta Uso Wake Mungu Baba that,
like your own version of it, is on YouTube; Did you copy and record Mary Atieno Ominde’s song?
AM: Just what is your article on?
OO: I am examining the issue of coptyright and fair play in music with reference to your Ooh Corona song that is a copy of Oliver Mtukudzi’s Todii, What
Shall we do? save for the languages used.
AM: If you read a story somewhere and then re-tell it, will you have broken any copyright law? Paulo na Sila is just Paulo na Sila.
OO: Copyright applies to the treatment, the packaging of a work of art, not a name, a title or a concept; have you breached Mary Atieno Ominde’s copyright?
AM: (Hesitates, hangs up).
OO: (Sends text) Thanks Anthony Musembi. I am Ogova Ondego with https://www.artmatters.info that specialises in culture and the arts(entertainment
issues).Please browse the site and if you have any additional information, do send it to me. Thanks for your time.
AM: (After about an hour, sends text) My lawyer will call you please dont write any article on about me Thanks.
OO: Are you threatening me?
