REX OWUSU MARFO v. JOY INDUSTRIES LTD.
2021
COURT OF APPEAL
GHANA
CORAM
- CECILIA H. SOWAH, JA. (PRESIDING)
- ANTHONY OPPONG, JA
- ANGELINA MENSAH- HOMIAH, JA
Areas of Law
- Intellectual Property Law
- Civil Procedure
- Evidence Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Anthony Oppong JA, writing for the Ghana Court of Appeal, affirmed a High Court judgment that a JOY DADI BITTERS advertisement unlawfully reproduced part of the song “DA DA DI DA” by a veteran Ghanaian musician who had declared his works with COSGA under PNDCL 110. The court emphasized that melody is the core determinant of reproduction; rearranged syllables (“Da” and “Di”) did not avoid copying where the tune was the same. Deferring to the trial judge’s evaluation of Exhibits N (song) and Q (advert), and supported by notation Exhibits Y and Z, the Court of Appeal held reproduction and infringement were established. On damages, the court reiterated that copyright is proprietary: innocence is no defense and proof of actual royalties or sales is unnecessary; damages are at large. Applying statutory and procedural rules, the court refused to reduce or increase the GHC200,000 general damages and affirmed the injunction. Justices Cecilia H. Sowah and Angelina Mensah-Homiah concurred.
ANTHONY OPPONG JA:
The Respondent is a Ghanaian music composer, music producer, writer, publisher and performer of no mean repute. He delved into the music industry from 1982. He has 15 albums to his credit. In 2004, he released an album titled ‘ADJALA’. That album contains the successful song ‘DA DA DI DA’. The Respondent registered and/or declared the album and the song with the erstwhile Copyright Society of Ghana (COSGA) under the then Copyright Law, 1985 (PNDCL 110).
On or about 2013, to his dismay and chagrin, Respondent discovered that the Appellant had been commercially using part of his work from the song ‘DA DA DI DA’ to promote or advertise its product JOY DADI BITTERS, without seeking nor obtaining the permission or license from Respondent, the right holder/owner.
The advertisement used to be aired on some radio stations at least four times a day. It used to be usually aired on the stations’ morning show programs which had wide coverage and in some instances were broadcast by several affiliate radio stations across Ghana. It was also available on the internet which connotes worldwide coverage.
It was the case of Respondent that appellant’s failure to obtain permission or license from him before using part of his work for advertising its product constituted contumacious breach of his copyright. Respondent therefore sued appellant for infringing on his copyright and for damages for that matter. It must be mentioned that before respondent sued appellant, the respondent gave appellant an opportunity to see the respondent for the latter to issue him the requisite license but appellant spurned that amicable gesture.
The appellant denied using the respondent’s work commercially to advertise its product. It claimed that its advertisement contained syllables or tonic solfas derived from the name of its product, ‘JOY BITTERS’.
After the trial, the High Court, Koforidua delivered judgment on 29th January 2020 in favour of the Respondent. The learned trial High Court judge made an order of perpetual injunction restraining the appellant whether by its directors, officers, agents, servants or assigns whatsoever from using without the respondent’s license the work entitled, ‘DA DA DI DA’ or otherwise infringing the Respondent’s copyright in the said work. The Court below also awarded in favour of respondent general damages of GHC200,000.00.
The appellant registered its dissatisfaction of the said judgment by filing notice of appeal on 12th March, 2020