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#Reconveneparly: The Conundrum of Culture Suing Culture

Red Herrings, Misrepresentation, Deniability & Blatant Copyright Violations

While in first world countries, musicians like rock star Neil Young are busy suing actual politicians like the cockapoo loser Donald Trump for violating copyright laws by playing his songs at rallies, in Zimbabwe maestros are filing civil lawsuits against comedians. Not for stealing their jokes but for what they describe as unlawful use of their music.

The big news in Culture this week is that Zimdancehall chanter, Wallace ‘Winky D” Chirumiko and his record label Vigilance Music, took legal action against Zimbabwe’s leading creative organisation and youth comedy ensemble, Magamba Network, for infringing copyright, loss of income and illegal use of his song, ‘Parliament’.

He demands US$8 000 for copyright violations and US$4 000 for loss of income.

Winky D’s attorneys submitted that on May 16, 2020, the Comrade Fatso & Outspoken-founded hub allegedly reproduced and published the song, infringing his copyright with their #Reconveneparly campaign ran on their weekly show called “In Case You Missed It”.

“Winky D’s claim against Magamba network is payment of damages in the sum of US$8 000 for infringement of the copyright subsisting in the original work, that is the lyrics, the music composition and sound recording entitled Parliament,” Winky D’s lawyers wrote.

Vigilance Music argued that the satiric video distributed by Magamba did not constitute fair dealing as it adversely affected the original work, resulting in their artiste losing a lot of income and fans disowning taste in his music.

“The offending work was a socio-political video which was accompanied by and contained a reproduction of the original work. The aforesaid conduct was not authorized by Winky D or Vigilance Music,” added the court application.

“Plaintiff is also demanding payment of damages in the sum of US$4 000 for loss of income arising from unauthorised publication of the original work entitled Parliament by defendant plus costs of suit,” further reads the summons.

Winky D’s lawyers say he only licenced the copyright in the original work to Vigilance Music.

The use of Parliament (a song that dropped in July 2018 when national electioneering was gathering momentum and earned itself a political tag as it was in the cauldron of all that was going on politically) on a political satire web show, the summon inferred, created an effect that Winky D was a political activist, estranging him from some of his fans.

But as a prudent performer, Winky D has historically held a “politically neutral” pose despite all the tonnes of proletariat and SJW caterwaulings that are as plain as a pikestaff (and less nuanced) in his work.

“Winky D is an apolitical musician and the thrust of his music is entertainment. The use of the work by Magamba Network has the effect – innocent or otherwise – of suggesting to the public that Chirumiko was aligned to or biased towards a certain political idea or movement which suggestion resulted in persons opposed to the said political idea or movement shunning the plaintiff and his music, leading to reduction of income on the part of the plaintiff.”

Thus Winky D and Vigilance Music want the court to make a resolve and order Magamba to pay the casualties for the lyrics, the musical composition and the recording of the song Parliament.

As is usually the case whenever there is a report of a creator being sued for copyright infringement, the response from the defendant and the community seems to be one of shock and surprise. Magamba Network, in the while, appears to have taken down the video on all their platforms, but they are yet to respond to the suit brought to them by an artist who erstwhile headlined their flagship Shoko Festival.

Noteworthy in all this is that there is a group of fans who are of the opinion that the Winky D’s camp might’ve taken it a bit farther in its ask for a sheer comeuppance from just one content creation entity (a comedy outfit for that matter) when he didn’t take any action when some of his music was being used by popular opposition leaders like Nelson Chamisa (Jecha). As well, they thought that the issue could have literally played out in Arbitration far away from all the media frenzy.

The key legal underpinnings on the case here – the deniability and insistence that the song is not political aligned – is a red herring of course due to the subjectiveness of art, but it holds water as it is coming from the creator, albeit one who has made a career singing social justice and politically-ridden music whose polarisation has been greeted with equally commendations and reproach.

Some, however, think that the Winky D’s camp is not asking for a moon on a silver platter. Rather, they are out looking for themselves and the dignity of their brand in an industry that has since been knuckled by copyright infringements and content misuse. To illustrate, many people who use social media in their personal lives may repost pictures of celebrities without permission from the photographers and with no consequences. It’s tempting to think that the same is true if a bigger corporation, entity or company repost the same pictures on their social media accounts. As this case demonstrates, the consequences for doing that can be much greater, therefore it is a scarecrow to wake or scare rights infringers of the need to ask or pay for content usage.

Anyway, there are a variety of defences Magamba Network could take, provided they are even paying any attention to the suit, if not creating yet another weekly show where they subliminally make fun of getting sued as comedians and humourists have tendencies of drawing laughter even in the worst of situations. One defence is that the subsequent use was a “fair use” that did not “adversely” affect the original work and did not infringe any of the copyright owner’s exclusive rights. Such exempted “fair uses” may include ones for comment or criticism on a particular work, for news reporting on a work, and for parody of an existing work.

And yes, they need to prove beyond reasonable doubt that their usage of Parliament did not have “the effect – innocent or otherwise” of suggesting to the public that Winky D was aligned to or biased towards a certain political ideal or movement. That’s the biggest task because, well, in that case, they are not only forced to debauch common sense but salvage (but God knows for how long) an insecure brand that stuck on a perennial island of wanting to speak out but can never cross over to the actual land of accounting for it.

ImChris Charamba

Head Storyteller/Critic at Large in Culture at Enthuse Afrika

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