This article critically analyses the copyright claim made by Kwame Mickey between Team
Eternity Ghana and Kwame Mickey over the song’s chorus, allegedly composed by Osuani Afrifa
and performed by Hallelujah Voices in 2004.

It focuses on whether the phrase “Manhyia Nyame anka .. yay3/abonsam /ay3 defe defe” is copyrightable and if the similarities between the songs constitute substantial similarity under Ghanaian law. The article examines the necessary legal criteria for proving copyright infringement, discusses potential defences, and considers how Ghanaian courts might look to Commonwealth jurisprudence for guidance.

Ultimately, the resolution of this dispute will significantly impact the understanding of copyright protection for unique phrases and expressions in Ghana’s musical compositions.

Background on Intellectual Property Law

The progress of society relies on the creation of new ideas and inventions, including cars, songs, airplanes, washing machines, and computers among others. Intellectual Property (IP) includes creations of the mind, and IP law safeguards the rights of creators of inventions, writings, music, designs, and other works. IP law encompasses areas such as copyright, trademarks, patents, and trade secrets. This article focuses specifically on copyright law.

According to the World Intellectual Property Organisation (WIPO), copyright is a legal term describing the rights creators have over their literary and artistic works. These works include books, music, paintings, sculptures, films, computer programs, databases, advertisements, maps, and technical drawings. A fundamental principle of copyright law is that ideas in and of themselves, are not subject to protection. Copyright law, however, does provide protection for the specific manner in which an idea is expressed. It is this original "expression" of the idea that the author is entitled to exclusively own and prohibit others
from reproducing.

Copyright law serves to balance both private and public interests. The private interest pertains to the author's right to benefit from their creative efforts. The public interest involves the dissemination and utilization of works by the public. Under copyright law, an author is granted two types of rights: Economic Rights and Moral Rights. Economic Rights encompass the exclusive right to receive compensation for the use of their work, such as the collection of royalties for the public performance of their music. Moral Rights include the right to be credited for their work whenever it is used and the right to object to, and seek redress for, any distortion, mutilation, or other modification of the work.

Generally, a person or an agency is required to obtain permission or consent to use copyrighted material belonging to a third party. However, there are exceptions to this requirement, such as fair use, which includes uses for scholarship, non-commercial research, private study, commentary, criticism, teaching, review, and news reporting. An author’s rights are protected for the duration of their life plus seventy years after their death.

For joint works, rights are protected for seventy years after the death of the last surviving author. If a public corporation or other body corporate owns the copyright, protection lasts for seventy years from the creation or first publication date, whichever is later.

For anonymous or pseudonymous works, rights are protected for seventy years from the creation, first public availability, or first publication date, whichever is later. If the author’s identity is revealed before the expiration of this period, the rights are protected for the author’s life plus seventy years after their death. Ghanaian jurisprudence on copyright is limited due to a lack of case law on the subject and the narrow nature of the country’s copyright law.

Legal criteria for copyright infringement

To succeed in an action for copyright infringement, a plaintiff must prove the following
elements

(1) Ownership of the copyright in the work. This involves demonstrating that the work is original and qualifies for copyright protection under the Copyright Act, 2005 (Act 690).

(2) Eligibility for copyright protection. The work must fall within the categories of works protected under the law (e.g., literary, musical, artistic works, etc.) and must be fixed in a tangible medium of expression.

(3) Proof that the defendant had access to the plaintiff ’s work and that the defendant’s work is substantially similar to protected aspects of the plaintiff ’s work. This is particularly important for works with similar content.

(4) Evidence that the defendant copied the work without the plaintiff ’s authorisation, showing that the defendant had access to the plaintiff ’s copyrighted work or demonstrating that the defendant’s work is substantially similar to the plaintiff ’s.

(5) Proof that the defendant performed acts reserved for the copyright owner without permission, such as reproduction, distribution, public performance, broadcasting, creation of derivative works based on the original, or adaptation of the work.

Establishing these elements allows the plaintiff to seek remedies such as injunctions, damages, accounting for profits, and the delivery of infringing copies. The defendant may raise defences like fair use, independent creation, derivative works, or argue that the work is in the public domain to counter the infringement claim.

The issue between Team Eternity and Kwame Mickey

The issue between Team Eternity and music producer Kwame Mickey hinges on whether the term and phrase 'defe defe' is copyrightable and whether there are substantial similarities between the two works that constitute an unauthorised act by the Team Eternity, which cannot be justified by fair use, derivative works, or public domain arguments.

Having listened to both songs, my assessment is as follows:

(1) The old song’s chorus goes: “Manhyia Nyame anka ..abonsam ay3 defe defe.”

(2) The new song’s chorus goes: “Manhyia Nyame anka way3 me defe defe.”

It is arguable whether this obvious similarity is substantial or unique.

Analysis of Substantial Similarity

Unfortunately, Act 690 does not provide explicit guidance on how to assess substantial similarity, making it difficult to predict a specific outcome with certainty. No legal action is currently pending before any court of competent jurisdiction. The author is expressing an academic opinion on a matter that has generated significant public interest and is not offering legal advice or encouraging any party to pursue court action based on these arguments.

Section 1 of the Act lists works eligible for copyright protection, including musical works and derivative works. However, Section 2 states that a work must meet two conditions to be eligible for copyright protection:

(a) It must be original in character.

(b) It must be fixed in a definite medium of expression, such as a book, which can be seen and felt.

While derivative works are based on or derived from existing works, they can still qualify for copyright protection if two conditions are met:

The author has added significant industry and skill to the original work.

The author has obtained the consent and/or permission of the original owner.

We can dismiss the argument regarding derivative work, as no author would raise copyright claims if proper permission and/or consent were obtained before publication. This leaves us to consider the issues of substantiality, uniqueness, fair use, or whether the work is in the public domain. For a work to qualify for copyright, it must be original in character. The bone of contention is whether the phrase “Manhyia Nyame anka .. yay3/abonsam /ay3 defe defe” (literally translated as “If not for God, the devil and/or the enemy would have completely destroyed me”) is copyrightable. The argument is that these are common Asante Twi phrases used by religious people, especially Christians, to show gratitude to God, and that any Christian artist or gospel songwriter may use it in their composition. Thus, no one can claim copyright ownership over such terms and phrases.

Origin of 'Defe Defe'

People knowledgeable in the Akan language cannot pinpoint when the word 'defe defe' entered the Akan Twi lexicon, but they agree it was not within daily contextual usage.

Anecdotal evidence suggests the Akan Twi common usage has been “pasaa” or “dosoo.” For instance, in Job 19:12, the word “pasaa” is used: “Mobeshe me kra akosi da ben, na mode nsem abubu me pasaa?” (How long will you poison my soul and break me in pieces with words?).

Anecdotal evidence suggests the word “defe defe” is a slang term that gained certainty with the song/performance by Hallelujah Voices in 2004. It is said that the song was written by Osuani Afrifa and produced under the supervision of Kwame Mickey for Kaakyire Music Productions.

Can Hallelujah Voices claim copyright over it?

Answering yes aligns with the school of thought that words or phrases or terms on their own may not be copyrightable. However, they gain the status of originality and are eligible for copyright protection when significant industry and skill have gone into turning them into unique lyrics, rhythm, sequence, pace, setting, and arrangement. The argument would be that although religious people, particularly Christians, may mention the name of God or praise God for redeeming them from the clutches of their enemies or the devil, it was not commonly put in the chorus by both Team Eternity and Hallelujah Voices, such as “Manhyia Nyame anka .. yay3/abonsam /ay3 defe defe” (If I had not met God, Satan would have completely and effectively destroyed me). This composition could be viewed as original and unique to the author and may qualifies for copyright protection.

Legal Tests for Substantial Similarity

The next issue to settle is whether Team Eternity’s “defe defe” song is substantially similar to that of Hallelujah Voices to raise copyright infringement claims. Since the Copyright Act does not provide guidance on this, we may refer to Commonwealth jurisdiction for inspiration and persuasive arguments. A competent court of jurisdiction will first filter out similarities that result from unprotectable aspects of the original work (the first “defe defe” song by Hallelujah Voices), and secondly, examine the “total concept and feel, theme, lyrics, rhythm, chorus, etc.” to determine whether the similarities rise to the level of “substantial.” Substantiality here is not only in terms of volume or quantity but in respect of even the hook of the song. That is why substantiality is further divided into two tests: “extrinsic” and “intrinsic” tests.

The intrinsic test is subjective and holistic. It involves determining whether the aspect of the plaintiff ’s protected work and the defendant’s work are substantially similar in total concept and feel. Here, we use the ordinary person on the street test. Will the person on the street of Makola or Kejetia market, upon hearing the two songs, say they are the same or not?

The extrinsic test will filter the two works (that of the plaintiff and the defendant). It will separate only those aspects that are copyrightable from those that are not and determine the similarities with the aspects that are copyrightable.

The copyrightable aspects of these two works come down to the chorus, which for me is the hook of the songs. The energy, zeal, excitement, glory, and what grabs the attention of many audiences, particularly religious people, is “Manhyia Nyame anka .. yay3/abonsam /ay3 defe defe.”

From both extrinsic and intrinsic perspectives, the ordinary man on the street of Makola market may conclude that they are similar and substantial.Those who argue they are not substantial may not consider the chorus as the hook of the two songs.

The current case spotlights three distinct copyright infringement lawsuits against Ed Sheeran, one of the world's leading musicians.

In the first case, artist Sami Chokri, known as Sami Switch, alleged that Sheeran's 2017 hit "Shape of You" copied his 2015 song "Oh Why." Sheeran won the UK lawsuit, with the court ruling that he "neither deliberately nor subconsciously copied" Switch’s tune. The High Court acknowledged "similarities" between the one-bar phrase repeating "Oh why" in Chokri's song and "Oh I" in Sheeran's, but stated that such similarities are merely a "starting point" for a copyright infringement claim and highlighted "significant differences" between the phrases in the songs.

In the second case, Sheeran faced accusations of copying the R&B song "Let’s Get It On" inhis 2014 hit "Thinking Out Loud." The heirs of the song’s co-writer, Ed Townsend, claimed Sheeran unlawfully used the "heart" of Gaye’s song, specifically its "harmonic progressions" and "melodic and rhythmic elements," rather than its lyrics or overall feel. Sheeran argued that these elements are common in popular music and not "unique, original, or protectable."

A Manhattan federal court jury ultimately found that Sheeran did not copy Marvin Gaye’s "Let’s Get It On," despite recognizing similarities.

In another instance in 2017, the songwriters behind "Amazing," performed by Matt Cardle, sued Sheeran, alleging he copied aspects of their track for "Photograph." Sheeran settled out of court, and the writers of "Amazing" were added to the credits of "Photograph." The plaintiffs argued that the chorus of both songs shared 39 identical notes and was crucial to the song, accusing Sheeran of intentionally copying it. Some, including Sheeran, argue that such lawsuits are becoming excessively frequent and harmful to the songwriting industry, especially considering the sheer volume of songs released daily. They claim there are only so many notes and chords available in specific genres, making coincidences inevitable.

However, can the same be said for Ghana and its gospel music genre? Are there too many songs being released, leading to mere coincidences in similarities? Could it be possible that Team Eternity did not consciously reference a phrase from a song released twenty years ago? Others might argue that the older track has significant exposure on both traditional and social media, suggesting that Team Eternity must have encountered it before. All these factors need to be considered before rendering a verdict on copyright infringement.

In Kenya, in the case of Nonny Gathoni Njenga & Another v. Catherine Masitsa & Others, Civil Case No. 490 of 2013, the Plaintiffs (Nonny Gathoni and Jane Odewale) sought a temporary injunction from the High Court to prevent the Defendants (Catherine Masitsa, Standard Group Ltd, and Bauhaus Ltd) from infringing on their copyright of the literary work registered as "Weddings with Nonny Gathoni," later televised as "The Baileys Wedding Show with Noni Gathoni." The Plaintiffs argued that the Defendants, without authorization, had illegally adopted, modified, and replicated significant parts of their literary works, thus infringing on their intellectual property rights. The Defendants contended that they had introduced their own wedding show, "Samantha Bridal," prior to the Plaintiffs’ show, asserting that their work was independently created and copyrighted.

The court noted that the dispute was not about the existence of the Defendants' show but about the "running order" of the show. The Plaintiffs claimed that the Defendants had altered their previous format to closely resemble the Plaintiffs' show, thereby copying their unique running order. The Defendants argued that the Plaintiffs were unjustly attempting to monopolize common elements of wedding shows, such as hen parties, limousine rides, and host gifts, which do not constitute proprietary content.

The Plaintiffs presented side-by-side video comparisons to demonstrate the similarities between the shows. While certain common elements in wedding shows, like the use of a limousine, might seem obvious, the Plaintiffs insisted that the Defendants had consistently produced "Samantha Bridal" with a distinct format until they allegedly acquired the Plaintiffs' running order and made substantial changes to mirror it, presenting it as a novel format. The Kenyan Court determined that the Plaintiffs had established a prima facie case, fulfilling one of the conditions necessary for the granting of an interlocutory injunction. In the case of Rex Owusu Marfo (aka Rex Omar) v. Joy Industries Ltd decided on 17 June 2021, the Ghanaian Court of Appeal upheld the High Court's decision, awarding Rex Omar damages for copyright violation by Joy Industries Ltd. The court clarified that the appellant's use of the same tune or melody from the respondent's song in their advertisement, despite having different lyrics, constituted a copyright infringement. The court cited the legal principle that reproduction involves sufficient objective similarity and a causal connection between the works, concluding that the appellant's advertisement was a clear reproduction of the respondent's original song.

The court referenced the Halsbury's Laws of England and previous cases, emphasizing that copyright infringement is determined by the similarity in the essential elements of the works, such as melody and lyrical arrangement, regardless of differences in lyrics. The evidence presented, including musical notations and declarations, supported the finding that Joy Industries Ltd. had reproduced significant parts of Rex Omar's work. Thus, the appeal was dismissed, and the original judgment was upheld.

Furthermore, the court noted that earnings from the copyrighted work are irrelevant in determining damages for infringement. The right owner is entitled to damages simply upon proof of infringement, irrespective of financial gain from the work. The court underscored that copyright is a proprietary right, and the motive or intention behind the infringement does not affect the right owner's entitlement to damages.

The Rex Omar case highlights that substantial similarity between protected and allegedly infringing works, regardless of lyric differences, can constitute copyright infringement. This case sets a precedent in Ghana, showing how courts evaluate infringement claims based on shared elements. In Mickey's case, even though it focuses on lyrics rather than melody, established legal principles must be applied to determine if Team Eternity’s use of the disputed lyrics constitutes infringement. This framework will guide the interpretation of copyright law in Ghana and influence the outcome of potential claims.

Comparison with English and American Courts

Substantial Similarity: Both English and American courts and the Ghanaian court in Rex Omar’s case focus on whether the works share substantial similarities in protectable elements. The U.S. uses the "ordinary observer" test, while the UK assesses substantial copying based on the impression of an ordinary, reasonable person. Similarly, the Ghanaian court examined if the melodies were alike enough for an ordinary person to recognize the advertisement as derived from the original song.

Objective Similarity: English and American courts analyze specific similarities in structure, sequence, and arrangement, often using expert testimony. The Ghanaian court in Rex Omar's case compared melody, notation, and lyrical progression, using exhibits to show that the two works were the same.

Access and Copying: English and American courts require showing that the defendant had access to the original work and that the similarities are not coincidental. The U.S. sometimes infers access from widespread distribution. In the Rex Omar case, the court considered that Joy Industries Ltd had access to the song since the melody was used in a commercial advertisement, indicating awareness of the original work.

Originality Requirement: English and American courts require originality, meaning the work must originate from the author and have a minimal level of creativity. The U.S. threshold for originality is low but must be independently created. The Ghanaian court implicitly recognized Rex Omar’s composition as original and independently created, thus qualifying for copyright protection.

Damages and Infringement: In English and American courts, damages depend on the economic impact of infringement and the benefit to the infringer. Innocent infringement is not a defence but may affect the calculation of damages. The Ghanaian court awarded GHS230,000 in damages, emphasizing that the right owner is entitled to damages per se once infringement is established, regardless of economic earnings or the defendant’s intent.

Public Domain Argument: The argument of public domain may also be defeated because of the duration of copyright expiration over such works. It has only been twenty (20) years since the publication of the
first song.

Conclusion

The current case highlights the nuanced considerations necessary to resolve the copyright issue between Team Eternity Ghana and Kwame Mickey over the song’s chorus, allegedly composed by Osuani Afrifa and performed by Hallelujah Voices. The Ghanaian courts will need to determine whether the phrase “Manhyia Nyame anka .. yay3/abonsam /ay3 defe defe” is original and sufficiently unique to qualify for copyright protection. They will also assess whether the similarities between the two songs are substantial and if they constitute an infringement of Hallelujah Voices’ copyright.

Given the lack of explicit guidance in Ghana’s Copyright Act on substantial similarity, the courts might look to Commonwealth jurisprudence for persuasive arguments. The analysis will involve both extrinsic and intrinsic tests to evaluate the total concept and feel of the songs. The intrinsic test’s subjective nature and the ordinary person’s perspective will be crucial in determining the outcome.

The argument that the phrase is a common Asante Twi expression used by Christians might be countered by the claim that its unique arrangement in the song is original and protected. The anecdotal evidence suggesting the phrase 'defe defe' is a relatively new coinage further complicates the issue.

Ultimately, while the facts seem to favour Hallelujah Voices in terms of originality and ownership, the final decision will rest on the evidence and arguments presented in court. The outcome will significantly impact the understanding of copyright law in Ghana, especially concerning the protection of unique phrases and expressions in musical compositions.

Broader Implications

The resolution of this case will have broader implications for the music industry in Ghana. It will set a precedent for how phrases and expressions, particularly those rooted in cultural and religious contexts, are treated under copyright law. Additionally, it will influence how new and existing musicians approach the creation and protection of their works.

The case also underscores the importance of having a more detailed and explicit legal framework for assessing substantial similarity in copyright disputes. Clearer guidelines would help creators understand the boundaries of their rights and the limits of permissible use of existing works. This would, in turn, foster a more vibrant and innovative artistic environment, encouraging originality while respecting the rights of existing creators.

Final Thoughts

The debate over whether the term “defe defe” and the associated chorus can be copyrighted is emblematic of the challenges faced in copyright law, where cultural expressions intersect with legal definitions of originality and creativity. As the courts deliberate, the music community in Ghana and beyond will be watching closely, aware that the decision will shape the future of copyright protection in the country.

In conclusion, the resolution of the copyright issue between Team Eternity and Kwame Mickey over the song’s chorus hinges on several nuanced legal considerations. The Ghanaian courts will need to determine the originality and uniqueness of the phrase “Manhyia Nyame anka .. yay3/abonsam /ay3 defe defe,” assess substantial similarity, and apply both extrinsic and intrinsic tests to reach a fair verdict. The outcome will not only resolve this specific dispute but also provide much-needed clarity and guidance for future copyright cases in Ghana.

About the author: Samuel Appiah Darko is a journalist, attorney, lecturer, and anti-graft advocate.