No sooner had Bamboo won a nine-year legal battle against Safaricom for unauthorized use of his three songs than the telecommunication giant returned to court to contest his Sh4.5 million compensation.
Safaricom has successfully secured stay orders to suspend the ruling by Justice Asenath Ongeri, which awarded Bamboo general damages of Sh1,500,000 per song for the unapproved use of ‘Mama Africa’, ‘Yes Indeed’, and ‘Move On ‘ as Safaricom Skiza callback tunes.
The telco, through the law firm of Prof. Musili Wambua & Co. Advocates, argues that the Judge misunderstood the core matter under consideration, which was to establish whether Bamboo held the copyright for the three musical compositions.
Safaricom states that Justice Ongeri deviated from this central question and introduced an alternate matter that was not addressed in the proceedings: whether Bamboo’s copyright was violated.
The Company also asserts that the High Court Judge failed to differentiate between the separate concepts of authorship and ownership within the realm of copyright.
“The judge erred in analyzing the submissions and authorities cited by Bamboo in a lopsided manner while disregarding those cited by Safaricom,” the grounds of appeal read.
Moreover, Safaricom points out that the Judge neglected to adequately address the matter of indemnity and the third-party claim that was presented before the court by the involved parties.
Safaricom had claimed that it was shielded from such claims due to indemnification by the companies responsible for supplying the musical compositions. These companies, which were sued alongside Safaricom by the artiste, were believed to have absolved Safaricom from any such liability.
Lastly, the telco claims that the high Court made a crucial error by arriving at a conclusion of copyright infringement liability without the support of concrete evidence.
Safaricom says the decision to award Sh4.5 million in general damages was misguided, as there was no loss suffered by Bamboo on the basis of evidence produced in court.
In a supporting affidavit, Safaricom’s in-house Counsel Daniel Ndaba says the court adopted a “narrow interpretation of the law and the evidence adduced in court.”
Ndaba said Safaricom is prepared to provide appropriate security as collateral in exchange for the Sh4.5 million decree, pending the final decision of the appeal.