against an orange background. The idea may have been the same however the expression is
different. There is therefore no infringement here.
Copyright offers legal protection to the fruits of human creativity so that both the creator and
the public as a whole may benefit from it. Copyright protection however is limited to the
expression of the author but if there is no skill or labour employed in producing the particular
form in which the work is expressed there will be no Copyright protection over it.
All in all based on the evidence in court and the legitimate inferences made from the
comparisons made between the artistic works of the plaintiff and those of the defendants
and the evidence on record on this matter, I have found that of all the works that the
plaintiff presented before this court as being infringed upon by the defendant there were
only two pieces that were actually infringed upon.
I accordingly find that the defendant infringed the plaintiff’s copyright on the artworks of the
mask on the wall hanging marked Exhibit P.3 and the Masai collection marked Exhibit P. 14.
Issue 3:
whether the plaintiff is liable under the counter claim
Defendant raised a counterclaim in their defence for general damages, for breach of contract
of license, declaration that the defendant is the owner of the copyrights in the artistic works
made by the plaintiff in her employment with the defendant, general damages for loss of
income. Detinue and conversion, delivery up of art works under license or copyright to the
defendant or the payment of market value thereof, infringement of copyright and costs of
the suit. Counsel for the plaintiff submitted that there was no truth in the defendant’s
counterclaim because it was not supported by any evidence. He further submitted that the
defendant in his view had abandoned the counterclaim in its entirety when she testified that
the plaintiff was neither her employee nor did they have such relationship and that she failed
to adduce in evidence the purported written license or assignment.
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