InTotal Band in serious copyright infringement storm

A growing debate over the commercial use of music by Zimbabwean artistes has erupted, with musicians questioning whether tribute performances can cross the line into exploitation of their creative works, identities and artistic brands.

The debate follows performances by InTotal Band, whose Legends Night concept recreates songs associated with some of Zimbabwe's most celebrated musicians, including living artistes.

The band has performed renditions of works by artistes such as Alick Macheso, Fungisayi Zvakavapano Mashavave, Oliver Mtukudzi, Tongai Moyo and Simon Chimbetu, among others.

While the concept has been praised for preserving Zimbabwe's musical heritage and introducing younger audiences to songs from different generations, some artistes are calling for greater consultation when their works, identities and distinctive performance styles are used for commercial purposes.

Gospel musician Fungisayi Zvakavapano Mashavave has reportedly raised concerns over the performances, arguing that artistes should be engaged when their music and artistic identities are commercially utilised.

Sungura star Alick Macheso has also urged InTotal to engage his management, signalling the need for dialogue between the band and artistes whose repertoires feature prominently in the Legends Night concept.

The controversy has consequently moved beyond the question of whether musicians may perform another artiste's song to broader questions surrounding moral rights, artistic identity and commercial benefit.

One artiste, in an emotional statement, questioned whether tribute performers should be permitted to reproduce not only an artiste's music but also their mannerisms, movements, dress and overall stage persona without consultation, particularly where such performances are used to attract corporate sponsorship and generate commercial value.

“Why replace me at a nominal fee and create unfair market competition for me using my personality, music, mannerisms, and creativity?” the artiste asked.

The argument is that tribute should not become a mechanism through which an original creator is sidelined while other performers commercially benefit from the creator's body of work and identity.

Zimbabwe's Copyright and Neighbouring Rights Act [Chapter 26:05] grants copyright owners exclusive rights over, among other things, the reproduction, publication, public performance, broadcasting and adaptation of musical works, subject to limitations and exceptions provided for under the law.

The legislation also recognises moral rights, including rights relating to attribution and protection against certain forms of derogatory treatment of a work. These rights can be enforced under the Act.

The law also provides mechanisms for licensing economic rights, making questions of permission and licensing potentially important where copyrighted works are commercially exploited.

However, the dispute raises a more complex question: where does a lawful cover or tribute performance end and the unauthorised exploitation of an artiste's distinctive identity begin?

A musician's song may be protected by copyright, but concerns over imitation of an artiste's name, appearance, mannerisms, stage persona or other distinctive attributes may involve legal considerations beyond copyright, depending on the circumstances.

InTotal's Legends Night has previously been presented as a cultural initiative aimed at celebrating and reviving Zimbabwe's musical heritage by recreating songs from different generations. The concept has attracted corporate backing, including from Ecobank, and drawn sizeable audiences.

The latest concerns therefore place the music industry at an important crossroads, as Zimbabwe seeks to balance the preservation and reinterpretation of its musical heritage with the rights of living artistes to control and benefit from their creative works and professional identities.

The debate could also prompt renewed discussion among copyright administrators, promoters, corporate sponsors, collecting societies and policymakers over whether existing licensing and legal mechanisms adequately address the realities of an increasingly commercial live-performance industry.

For the affected artistes, the issue is not necessarily opposition to other musicians performing their songs. Rather, they are calling for consent, recognition, fair compensation and respect for the original creators.

With the debate gaining momentum, dialogue between InTotal Band and the affected artistes could provide an opportunity to establish clearer boundaries around tribute performances and ensure that the celebration of Zimbabwe's musical heritage does not come at the expense of the musicians who created it.