When two musicians collaborate on a song, the focus is often on creating good music rather than agreeing on who owns it. However, when the song attracts commercial interest, disagreements may arise over licensing, royalties and the right to authorise its use.
Consider two Kenyan musicians who jointly create a song without signing a written agreement. After the song gains popularity, one licenses it for use in a Netflix production without consulting the other or sharing the proceeds. Does the excluded musician have any legal rights?
Under Kenyan law, the answer depends on the contributions made, the ownership of the relevant rights and any agreement between the artists.
Who Owns a Jointly Created Song?
The Copyright Act, Cap. 130, protects eligible original musical works, including lyrics and compositions. Copyright generally arises automatically once an eligible work has been expressed in material form; registration is not a prerequisite to protection.
Section 2 of the Act defines a work of joint authorship by reference to collaboration between authors whose contributions are not separable from those of the others. Simply appearing on the same track does not automatically make everyone a joint author. The nature of each person’s contribution must be considered.
Section 31 addresses first ownership of copyright, subject to the exceptions provided by law. Where musicians jointly create a work, their respective contributions and any applicable agreement are important in determining ownership. The absence of a written split sheet does not automatically deprive a genuine co-creator of copyright, although it can make ownership and the agreed shares more difficult to establish.
The Song and the Recording Are Different
An important distinction is that the musical composition and the sound recording are separate works. The composition consists of the underlying music and lyrics, while the sound recording captures a particular recorded performance.
For example, two musicians may jointly write a song while a record label owns the master recording under their agreement. The musicians’ rights in the composition must be considered separately from the label’s rights in the recording.
This distinction matters when licensing music for films, advertisements or streaming productions. Depending on the proposed use and the rights already secured, permission may be required for both the composition and the sound recording.
Can One Musician License the Song Without the Other’s Consent?
This depends on the applicable ownership arrangement, the scope of the rights involved and any agreement between the artists. A musician should not assume that participating in a collaboration gives them unrestricted authority to license every right in the finished work.
Section 33 of the Copyright Act addresses assignments and licences of copyright, including the statutory writing requirements for assignments and exclusive licences. A licence permitting a particular use is different from a transfer of copyright ownership.
If one musician grants a licence without the necessary authority, the other may have grounds to challenge the use. However, where the licence was validly granted but the proceeds were not distributed as agreed, the dispute may principally concern breach of contract or an obligation to account for the income received.
The absence of a written agreement does not necessarily mean that no agreement existed. Messages, emails, payment records and other evidence may help establish the parties’ intentions and respective rights.
What Rights Does the Excluded Musician Have?
A musician who believes their work has been used without proper authorisation should first establish the nature of the dispute. Under section 35 of the Copyright Act, certain unauthorised acts involving protected works may constitute infringement. Depending on the circumstances, available remedies may include an injunction and monetary relief.
The artist should preserve evidence of their contribution, such as lyric drafts, voice notes, project files and correspondence discussing the collaboration. Details of the disputed licence, including the rights granted and the payment received, may also be important.
Section 32 protects authors’ moral rights, including the right to claim authorship and, in specified circumstances, object to prejudicial distortion or modification of their work. These rights are distinct from economic rights and should not be confused with an entitlement to a particular share of royalties.
Not every disagreement over payment amounts to copyright infringement. Where the main complaint is that a co-creator has withheld money contrary to an agreement, a contractual claim or a claim for an account of the proceeds may be more appropriate. The correct legal approach depends on the evidence and the rights involved.
How Can Musicians Protect Their Rights?
A written split sheet is a useful starting point because it records the contributors to a composition and their agreed ownership percentages. A broader collaboration agreement can also address licensing authority, royalty distribution, expenses, ownership of the master recording and dispute resolution.
Artists should agree on these matters before releasing the song, particularly where a third party, such as a producer, record label or distributor, is involved. They should also retain clear records of their contributions and any subsequent agreements concerning commercial use.
The Kenya Copyright Board (KECOBO) provides information and services relating to copyright protection and administration in Kenya. Although copyright generally arises without registration, maintaining reliable records of authorship and ownership can be valuable when a dispute arises.
Conclusion
A successful musical collaboration should not leave its creators uncertain about ownership or their entitlement to revenue. Kenyan copyright law protects eligible musical works and sound recordings, but the rights of individual contributors depend on their contributions, the applicable ownership arrangements and any relevant agreements.
Where one musician licenses a jointly created song without the necessary authority or fails to distribute income as agreed, the other may have grounds to seek legal relief. The appropriate claim will depend on whether the dispute concerns ownership, unauthorised use, breach of contract or unpaid royalties.
For Kenyan musicians, documenting ownership shares and agreeing on licensing and royalty distribution before releasing a song can prevent costly disputes. A clear written agreement protects not only the music but also the working relationship between the people who created it.
