plaintiff’s submission therefore that the defence witnesses knew very well about the plaintiff’s
art work in details and could also describe the work in detail at a technical level. That this
therefore showed that the plaintiff’s works were original, that she expends effort on creating
the artworks and that she is the author and owner of the artistic works and copyrights.
Counsel for the defendant on the other hand submitted that the defendant does not dispute
that the plaintiff is the author of various artistic works. He however submitted that what is in
dispute is whether the said artistic works confer a copyright on the plaintiff. Counsel for the
defendant referred court to section 3 (2) of the Copyright Act and submitted that for the
artistic work to be eligible for copyright protection or to confer the author with a copyright,
there has to be originality. Counsel for the defendant further made reference to the case of
C.A Systems Ltd .v. Kalamazoo Ltd [1974] E.A 21 where court held that protection
under copyright law is only available if originality is proved. It was counsel for the
defendant’s submission that no evidence was led by the plaintiff to prove that her work was
original and that she had exerted sufficient effort in creating the said works. On the contrary,
Counsel submitted that the plaintiff had relied on a text in a book entitled “A short history
of African Art,” by Werner Gillion (Exhibit P.2) from which she copied the masks and the
lizard and improved on them by adding some few touches and then passing them on as an
original.
Counsel for the defendant further submitted that the plaintiff did not lead any
evidence to prove that in actual fact her art pieces were created before the alleged infringing
pieces. Counsel for the defendant therefore submitted that the art pieces exhibited do no
bear out the originality as alleged by the plaintiff and that the unique style attributed to the
plaintiff’s gold borders, black background and exaggerated body movements is a universal
style to which no single person can claim exclusive ownership.
I have perused the evidence before court on this issue and the submissions of both
Counsels. According to Halsbury‟s Laws of England 4th Edition vol. 9(2) page 10 para.
3, a copyright is defined as follows:-
“A Copyright is the exclusive right to do, and to authorise others to
do… certain acts in relation to literary, dramatic and musical works,
in relation to artistic works and in relation to sound recordings, films,
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