Making Caller Tunes of Person’s Voice Not Copyright Infringement: Case of Ssebagala v. MTN Uganda Ltd & Anor

This blogger has come across a recent judgment from the High Court in Uganda in the case of Ssebagala v. MTN (U) Ltd & Anor. In this case, Ssebagala the former Mayor of Kampala spoke to journalists who were waiting outside the precincts of Parliament. Ssebagala was being vetted by Uganda’s Parliamentary Appointments Committee following his nomination for appointment as a Cabinet Minister.

During the question and answer (Q & A) session, Ssebegala is said to have responded to the journalists using his “characteristic style and skill which obviously generated a lot of merriment”. Ssebagala’s interaction with the press was publicly broadcast in Uganda as current news of public and political events. Thereafter SMS Media Ltd, the third party in the suit, adapted audiovisual recordings of Ssebagala into caller ring back tones (CRBTs) and offered these caller tunes to leading mobile network MTN Uganda for sale to the latter’s subscribers.

In a previous blogpost here we highlighted that Ssebagala filed suit in the Commercial Division of the High Court seeking two main orders: firstly a declaration that MTN’s use and/or sale of Ssebagala’s speeches/addresses as ring tones/caller tunes constitute an infringement of his copyright; and secondly a permanent injunction restraining MTN from further violation of the said copyright. Ssebagala also asked the court for an order of audit of all the proceeds received by MTN from the use of his said copyright and delivery up of the same to him. Ssebagala asked the court to award him general damages, exemplary damages, and aggravated damages, costs of the suit and interest on the claims.

In its judgment, the court found against Ssebagala stating that he cannot claim authorship for the purposes of the Ugandan Copyright and Neighbouring Rights Act and therefore no economic or moral rights allegedly belonging to Ssebagala had been infringed by MTN and SMS Media. From the judgment, it is clear that counsel for Ssebegala gravely erred in claiming Ssebagala was author/co-author of the ringtones and that the copyright in the suit ringtones vests in him.

Copyright aside, the learned judge also appears to suggest that Ssebagala’s cause of action ought to have been based on image rights using the tort of appropriation of his personality:

“In this case (….) Ssebagala (the Plaintiff) made his utterances in public and meant them to be communicated or disseminated to members of the public. He did not give any restrictions as to how that information was supposed to be used by the people to whom he freely gave his answers. He has not come to this court claiming a tort of appropriation of his personality but claims inter-alia unjust enrichment and copyright infringement. Because he enjoys no copyright in the circumstances, the action for copyright infringement has to fail and is hereby dismissed.”

A copy of the judgment is available here.

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