Plaintiffs work was in any way diminished by the Defendant‘s infringement. The appellate court
upheld the decision and held that in a copyright action, a trial court is entitled to reject a
proffered measure of damages if it is speculative.
As far as general damages are concerned, the law presumes that it flows from the type of wrong
complained of. According to Lord Macnaughten in Stroms versus Hutchinson [1905] AC 515
general damages under cited law is presumed to be the direct natural or probable consequence of
the act complained of. This is in line with section 45 (3) of the Copyright and Neighbouring
Rights Act. Consequently the general damages should be a result of the direct infringement if
any of the Copyright in this song. They cannot follow from the Plaintiff‘s general performances
as an artist but rather from the infringement of the "let's go Green song" specifically. The
Defendants Counsel further submitted that the Plaintiff is not entitled to any damages for various
reasons. Firstly the Plaintiff is unsure of her earnings and only gave estimates of earnings in a
month but not annually. Secondly she did not provide the court with any specific evidence of her
earnings from the song "let's go Green" and she did not adduce any evidence to show that her
earnings had been affected since the launch of the Defendant's jingle. Secondly Counsel attacked
the testimony of the Plaintiff on the ground that it is contradictory because she claims to produce
this song for the protection of the environment and at the same time says it is for commercial
purposes. This was the reason why she was supported and endorsed by the British Council. On
the other hand the Defendant did not derive any commercial benefit from the use of the jingle
and any loss suffered if any was too remote to cause damage to the Plaintiff (if any).
Punitive/exemplary damages
The Defendants Counsel relies on black's law dictionary at page 448 for the definition of
"punitive damages" as damages awarded in addition to actual damages when the Defendant acted
with recklessness, malice, or deceit especially damages assessed by way of penalising the
wrongdoer or making an example to others. The Defendant did not act with any malice or deceit
and does not have any personal vendetta against the Plaintiff. The jingle was purposely made for
the protection of Namanve Forest. Counsel relied on the text book by Richard Arnold
"Performance Rights" at page 210 paragraph 6.28 thereof that intellectual property torts such as
infringement does not usually fall within the three categories of cases in which an award for
exemplary damages may be made namely: exemplary damages are awarded where there is
oppressive, arbitrary or unconstitutional conduct by government servants; conduct with cynical
disregard of the claimant's rights and calculated to make profit which would exceed the damages
likely to be awarded and finally express authorisation of statute. When cases within the second
category may occur, such cases are usually dealt with by an award of additional damages rather
than by an award of exemplary damages. The nature of the evidence adduced by the defence is
that the jingle was simply a non-commercial jingle intended to save Namanve Forest and to
benefit Ugandans generally rather than enrich the Defendant.