'Defe Defe': What went wrong? - A copyright lawyer answers

As the media landscape is still stuck in a heated discussion over Team Eternity's hit song 'Defe Defe' and its possible copyright infringement, an Intellectual Property Rights lawyer, Emmanuel Kantam Duut Esq., has provided valuable insights into copyright laws and the potential ramifications for artistes and producers involved in such disputes.

In May 2024, Ghanaian Gospel group, Team Eternity took the Ghanaian airwaves by storm with the release of their smash hit ‘Defe Defe.’

The song went on to dominate the charts of various streaming platforms in Ghana and quickly made Team Eternity a household name.

However, their domination quickly became marred by controversy.

Barely a month later, on June 24, 2024, renowned music executive and producer, Kwame Mickey, in a Facebook post, accused Team Eternity of copyright infringement for adapting the lyrics and chorus of a song with the same name that he produced.

This quickly sparked conversations, with many defenders talking about the issue.

To shed light on this, GhanaWeb’s Isaac Dadzie sat down with Emmanuel Kantam Duut Esq, to discuss what constitutes copyright infringement and all matters associated with it.

Firstly, what rights are being infringed upon?

To make a copyright claim, one would have to prove that he/she actually owns the Copyright in the work that has allegedly been infringed upon.

Music is composed of various components that come together – from the sound recording,beat to the lyrics and melody – which may be owned by different people.

According to Emmanuel Duut Esq, “The rights revolving the topic for discussion is known as the Publishing rights, which is the rights associated with the lyrics and composition to the music. This can be gleaned from the fact that Kwame Mickey’s allegation of copyright infringement by Team Eternity is based on the use of the Lyrics and Chorus of the song he produced as an Executive Producer."

The Lawyer further proceeded to establish the fact that it is imperative to determine the capacity of the Executive Producer in order to ascertain whether or not he can make such copyright infringement allegations in the first place.

In his own words he stated, “We need to know whether or not he(Kwame Mickey) has the capacity to make such allegations in the matter. And this should be established by a concrete evidence or proof in that regard.”

That is to say whether or not he owns the publishing rights which include the lyrics and the chorus of the song that he makes mention of.

The Lawyer justified his remarks on proof of capacity by the fact that ..“The usual industry practice is that an executive producer does not necessarily own the publishing rights to the song he produced.This is because the Executive producer most often than not finances the production of the song and by virtue of that, owns the copyright in masters/ Master recordings and not the publishing rights. However, this is a rebuttable presumption which can be countered with proof otherwise.”

“The publishing rights are owned by the writer of the song or the producer who may have co-composed the song with the artiste)

Thus, before Kwame Mickey can claim copyright infringement of the lyrics, he must first prove that he has the rights to the lyrics themselves and not Osuani Afrifa, who is believed to have actually wrote the song.

What exactly did Team Eternity do wrong?

In addressing this issue, the Lawyer indicated the need to explain that the song Produced by Team Eternity contains some modifications to the lyrics of the song Produced by Kwame Mickey as an Executive producer and hence this makes Team Eternity’s Song a “Derivative work.”

He explained that “ A derivative work is defined under section 76 of the Copyright Act, 2005(ACT 690) of Ghana, as any work that results from the adaptation, translation or other transformation of a particular intellectual property or original work in so far as it constitutes an entirely different independent work,”

It basically means, ‘any work that is derived from a pre-existing work including portions or pieces of an existing work that are modified, adapted, translated, or transformed into a differently constituted new work and as Hence to use, adapt, or transform any pre-existing work, you need authorization from the owner of that work.” the Lawyer emphasized.

This is because Copyright is basically the exclusive rights owned by the owner of creator of the work or the intellectual property to permit others to use or to prevent others from using work in any manner or form.

Thus, “making a public performance of someone's work, broadcasting, communicating the person's work to the public, the distribution of the person's work without the person's consent, the translation, adaptation, the arrangement or the transformation of the person's work, or even reproduction of the person's work without the person's consent forms part of copyright infringement,” Emmanuel Duut Esq adds.

When asked how a an individual can proof copyright infringement, the Lawyer stated as follows;

“I think in most cases, it is quite clear to prove copyright infringements unless in some circumstances where proving the particular infringement could be complex. This is because most often than not, the owner of the work, upon having full knowledge of what he or she has created can easily tell which part of the work has been modified or used without authorization.

"Contextually, since the topic for discussion is on the 'Defe Defe' issue, the portion of the song that has been allegedly been used is a differently constituted independent work altogether and hence the right thing to do is for Team Eternity to have sought for the permission or authorization from the owner of the publishing rights to the original work subject matter of discusion.”

What about ‘unintentional’ copyright infringement?

A major argument given was that it is possible to have used lyrics or melodies from another song previously produced without knowing.

However, according to Emmanuel Duut, “Ignorance of the law is no excuse. The fact that a person may not have noticed the inclusion of portions to an already pre-existed does not exculpate the liable party from any form of copyright infringement claims, especially if it is proven.

“So what the liable party has to do is just to take the necessary steps to compensate the owner of the original work or by way of an amicable settlement of the dispute”

“This is why the registration of a work at the Copyright Office is very significant and crucial. Although a person need not register a work at the copyright office before protection is accorded to the work. Registration serves as an avenue for the copyright office to conduct investigations to verify whether the work is derived from a pre-existing work and as to whether there has been any copyright clearance from the original owners of the work before registration will be completed. ”

Theft or fair use?

In such cases of copyright infringement, many individuals use the term ‘fair use.’

However, fair use is not a defence in many cases. There are specific requirements for a work to be tagged as ‘fair use’ and allowed to go scot-free.

“Fair use is basically the limited use of a copyrighted work under certain circumstances without having to seek the permission of the original owner especially when the work has been made available to the public domain.

“There are specific statutory requirements to be complied with for the use of another person’s work. Thus, authorization or consent form the original owner ought to be sought before the following could be done:

"The re-production, translation, adaptation, modification, rearrangements or the transformation of the work. The public performance, the broadcasting, the communication of the work to the public, and also the distribution of the public of originals or copies of the work that has been owned by the individual.

“Fair use could be a defence in some circumstances, but not in all circumstances. “The defence of Fair use suffices if the work is thus used for purposes of critique, news, scholarly purposes or education etc.“But you cannot use someone's music in a manner to make profits and later claim fair use as a defence.”

In conclusion, the entire 'Defe-Defe' controversy has highlighted issues of proper documentation and adherence to copyright laws.

Time and again, news has broken about musicians and producers 'stealing' or 'copying' someone's works without permission.

Whether the case goes to court or not, music stakeholders could learn from this to seek legal counsel and obtain necessary permissions before incorporating elements from existing works into their own compositions.

Feature by Isaac Dadzie