In the present case, the parties agree that the Plaintiff participated in and won a competition
organized by Kampala City Council (KCC) and created a model sculpture to mark the 100
years of the Council’s existence. The Plaintiff was paid Shs. 1,000,000/- for the model.
It is not disputed in this case that the model out of which the sculpture was eventually created
was the original work of the Plaintiff. It was never copied from another persons’ work. It was
a product of her labour, skill and judgment.
However, as already indicated above, the model was created in the course of a competition
organized by KCC. KCC advertised in the Newspapers seeking contestants to participate in a
competition for the creation of a model that would be translated into a sculpture for
construction of a monument. The parties agree that there was such an advertisement, although
no copy was ever availed to court and therefore the exact terms of the advert are not known to
court.
The Plaintiff participated in the competition and won the prize of shs. 1,000,000. Court finds
therefore that the Plaintiff was commissioned by KCC to do a design for a sculpture.
Meaning that the model design was made to the order of KCC. The work the Plaintiff
produced was a drawing of the sculpture and not the sculpture.
It was also the testimony of the Plaintiff in this respect that there were no further agreements
with KCC in respect of her artwork except that KCC wanted the model enlarged and
executed in Kampala Centenary Park. And that no date was given when KCC was to enlarge
the artwork.
With the Plaintiff’s admission that there were no further agreements with KCC, Court finds
that the Plaintiff did not acquire or retain copyright work in the drawing that was
commissioned by KCC. The copyright now belongs to KCC, which commissioned the work
and paid for it.
Court is fortified in its decision by the provisions of S.8 (1) (b) of the Copyright and
Neighbouring Rights Act. The section provides that “Where a person creates a work on
commission by another person or body; then in the absence of a contract to the contrary,
the copyright in respect of that work shall vest in … or the person or body that
commissioned the work.”
The provision is mandatory.
Eventually, Prof. Ssengendo was commissioned by Shell (U) Ltd to turn the model/design
into a sculpture. The model was accordingly enlarged and made into the sculpture when the
Plaintiff was in the United States of America between 1992 -1995; by Prof. Ssengendo
assisted by Sylvia Katende – Exhibit P111. The Plaintiff contends that her contact address
was known to Makerere as being c/o the University of Pennsylvania. And that she was the
one to put up the sculpture at the Park, after enlarging it with the help of Engineers.