Before you record, and hope to make money from anyone's music - Ace Ankomah writes

🧾Case: Rex Owusu Marfo (Rex Omar) v Joy Industries Ltd

I - Issue

1️⃣Whether the defendant infringed the plaintiff’s copyright by using a similar melody/tune in its advertisement despite different lyrics.

2️⃣What constitutes “reproduction” of a musical work under copyright law.

3️⃣Whether lack of intent or absence of financial loss is a defence to copyright infringement.

R – Rule

1️⃣Reproduction Test: A work is reproduced if:

* There is objective similarity between the works; and

 * A causal connection exists between them.

 * The work must be so similar that it suggests the original to the mind of the listener.

2️⃣Melody Principle: In musical works, the melody/tune is the most important element in determining infringement.

3️⃣Irrelevance of Intent: Copyright infringement is a strict liability offence: innocence or intention is irrelevant.

4️⃣Damages Principle:

 * Proof of actual financial loss is not required.

 * Once infringement is established, damages are awarded per se.

A – Application

1️⃣The court compared the plaintiff’s song (Exhibit N) and the defendant’s advertisement (Exhibit Q) and found:

    * The melody/tune was identical, even though the lyrics (“Da” and “Di”) were rearranged.

    * The defendant had reproduced, imitated and extracted key elements of the plaintiff’s work.

2️⃣Evidence such as:

    • Musical notation

    • Lyrical progression

    • Structural similarity demonstrated that the two works were substantially similar.

3️⃣The defendant’s argument that different lyrics avoided infringement was rejected because copying the melody alone is sufficient.

4️⃣The court also held:

    • The defendant’s intent or innocence was irrelevant.

    • The plaintiff did not need to prove financial loss or prior earnings.

C – Conclusion

The court held that the defendant infringed the plaintiff’s copyright by reproducing the melody of his song in a commercial advertisement.

* Judgment for the plaintiff was upheld on appeal.

* The plaintiff was awarded:

    • GH¢200,000 in damages

    • GH¢30,000 in costs

✅ Key Takeaway

Copying the melody of a song, even with different lyrics, can amount to copyright infringement and liability arises regardless of intent or proof of financial loss.