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In the midst of the ravaging Covid-19 pandemic, there emerged a song from South Africa which took the world by storm and left so many with smiles on their faces. The Jerusalema song released by Master KG, real name Kyagoello Mogi featuring vocal singer Nomcebo Zikode released in October 2019 has been trending on social platforms becoming a popular hit with currently over 193 Million views ⁱon Youtube. This song has gone around the world and has been endorsed by presidents and even clergymen. South African President, Cyril Ramaposa was urging South Africans to participate in the dance challenge as the country commemorated its Heritage Day.²

The song is a lamentation for God to take the singer to the heavenly city of Jerusalem and has been an uplifting song to many during the difficult times of the Corona pandemic.  Various people across the globe have joined in, to what is termed the “Jerusalem dance challenge” where people dance to the song in a particular routine. The dance challenge was started by a group of young men in Angola and it was their video of them dancing to the song which sparked a global trend.

Several clips of keen dancers across the globe including nuns, monks, construction workers, police officers, waiters, lawyers, bankers, fuel attendants amongst many other people have been shared on social media platform. Even international celebrities such as Christiano Ronaldo^[1], a football star have associated themselves with this “Covid hit” as the world took on this dance challenge in jubilation. Businesses too, have not been left out. Many took advantage of the dance challenge to advertise their products and services.

It is no doubt that the song has earned Master KG a lot of fame and maybe, good fortune^[2]. However, many people have turned a blind eye to the law and have never considered that the exploitation of the song is also regulated by law. This article therefore seeks to ventilate on the rights of the authors of the song as well as the legality of the dance challenges which have sprouted across the globe. Many have wondered whether Master KG still has any legal rights

to the song and what exactly governs this sort of musical frenzy. Let me hasten to say, it is not new, many songs have been global hits^[3] and the  same questions may have arisen but this one in particular, has sparked a lot of debate amongst legal minds, ours^[4] included.

Firstly, it must be noted that songs/music belong to the branch of law which is called intellectual property law.  Intellectual property law seeks to protect intangible rights which arise as a result of mental labour, human activity and creativity. Intellectual property protects creations of the mind.

The law recognises the right of an author, of say a song to exclude others from doing certain acts with respect to that song which acts would be the preserve of the author. With respect to music, such protection is afforded through what is termed copyright. Copyright grants an exclusive right to an author of a creative work, which enables the author to use his work, gain profit from it, and be credited for it, among other derived rights. It seeks to create a system whereby the creator of the original work is afforded a qualified monopoly in the use or exploitation of his works in order to

1. Compensate and reward him for the effort, creativity and talent expended and utilised in the creation of his work. ii. Also act  as an incentive for the author to create more and better works or products from his skills or talent

In every country, the law determines the required conditions for a work to be considered a creative original work that is entitled for a copyright protection. In most countries, the copyright consists of two types of rights: an economic right and a moral right.  An economic right is the right to use the work and receive all benefits from it whereas a moral right is the right to be attributed for a work and to keep the work’s integrity.

With respect therefore to the Jerusalema song, there are acts which are a preserve of the author of the song which if done without their authority, violates their copyright in the song. The question for determination with respect to the challenge becomes, does public performance of the song Jerusalema violate Master KG’s copyright to the song? An interesting issue to note here is that the dance routine which led to the Global music challenge was not originated by Master KG but the Angolan guys who shot a video dancing to the song. This brough transformation to the song and maybe a whole new meaning to the song which may have been a local hit in South Africa at the time but had not really been a global hit.^[5]That said, it does not take away Master KG’s legal entitlements which come from any form of exploitation of the song.

Before dealing with whether there was any violation of Master KG’s copyright in the song it ought to be noted that intellectual property rights are territorial. This means the rights afforded to the authors of the Jerusalema song differ from one country to another. Some acts may be lawful in one country and unlawful in another hence one needs to have an understanding of their national laws before exploiting the song. Be that as it may, there are international treaties which also govern copyright and related rights. These apply to a country depending on whether it is a signatory to them. To note in this instance is the Berne Convention which has 166 member states as well as the TRIPS agreement^[6].

In Zimbabwe, for example copyright in a work is protected through the Copyright and Neighbouring Rights Act [Chapter 26:05]. This Act gives the author of a musical work the exclusive right to reproduce the work; publish the work; import the work into Zimbabwe or export it from Zimbabwe, otherwise than for the personal and private use of the person importing or exporting it; perform the work in public; broadcast the work and make an adaptation of the work. It is mandatory for anyone who seeks to use an author’s work that they seek their permission. If you are going to use Jerusalema in a movie for example, the legal position is that you seek a license from the artist. The license will determine how you can use the music, for how long and for what cost. A song will retain copyright protection for the duration of the author’s  life PLUS another fifty years after the year of their death.^[7] It is only at this point where the song is no longer under copyright protection and can now be exploited freely without the permission of the former copyright owner. Jerusalema is not in the public domain as may be assumed. In fact, it will not be anytime soon anyway therefore,  whoever uses this song or makes a public performance of the song, should attribute it to its creator and seek permission to use it, in any manner  or for whatever purposes. This is what the law dictates, generally.

However, copyright law is not applied as such in every circumstance. It provides exceptions where copyrighted works can be used without necessarily obtaining permission from the author. These include fair dealing with copyrighted work say for educational purposes or in news reporting. Generally, there is a test which is used to ascertain whether the use of the copyright work amounts to fair use/fair dealing. It is a rather complicated area of the law as it is often awfully hard to figure out what is considered fair use and what is not. The determination, however, depends on four considerations:

1. the purpose and character of the use, especially whether it is commercial or not,
2. the nature of the copyrighted work,
   • the proportion between the used part and the whole work, in terms of quantity and substantiality, and
3. the effect the use has upon the potential market of the original work.

With this in mind, can those Jerusalema dance videos qualify as fair dealing in the copyrighted work? Can we apply the fair use doctrine to this song?  The song, by many, is being used for entertainment and those dancing to the song do not have an intention to derive any benefit from it and neither do they have an intention to deprive the copyright owner of remuneration that could reasonably have been expected from the exploitation of the work. In jurisdictions where the fair use doctrine is applicable, the genuine use in entertainment would qualify as an exception to the infringement of the copyright through the Jerusalem dance challenges.

However, if the law is to be applied strictly, any form of publication of the song on any social media platform will be considered as an infringement. Any person who publishes the song without authorization from the authors would be infringing the copyright in the song. Of concern are businesses that are using the dance challenge to advertise their goods and services. Commercial use is less deserving of the fair use exception and if proved that the song was used for commercial purposes many businesses will be found wanting. Another critical question to address would be the reasonableness of the use of the copyrighted work. If the use of the work is for commercial purposes, then it follows that the authority of the proprietor of the work would be necessary.

Unfortunately, several businesses have overlooked this legal threat to their jubilation. They participated in the Jerusalem dance challenge and in the process were advertising their services without seeking the authority of the authors of the song. Some have gone further to upload the dance challenge on you tube and added a disclaimer that they do not own the copyright in the song in the background. Attribution is great but it is not sufficient if the law was to be applied strictly. It would not assist much, in the absence of express authorization from the authors of the song to use the song.

Conclusion

This is  the legal position but what prevails is simply up to the Master KG and his team. Whether or not copyright has been violated in this instance may not be of concern to Master KG and his team at the moment. The publicity has been phenomenal, it has placed Master KG on the international market. Lucrative too, anyone who uploads the video on youtube is adding to the fortune of Master KG. After all, no one has claimed that they own the copyright, they are just dancing to it. Many acknowledge that the copyright in the song belongs to Master KG. Even without that acknowledgment, Master KG can still  approach youtube and claim copyright of all Jerusalem dance challenges through what is called content ID and he will be paid for the views of all those videos of people doing the Jerusalem dance challenge.

The world is in the middle of a global crisis. To apply copyright law strictly in this instance would be to be unnecessarily harsh. More importantly, any prejudice suffered by Master KG is likely to have been overridden by the good fortune that he has enjoyed so far. He does not seem to have complained either. The “Covid court of public opinion” seems to have concluded that the fair use exception stands, whether the song has been used for entertainment or for commercial purposes. It seems to me the global audience has been granted an open license of the Jerusalema song and only in 2020, can the world freely share, dance and record themselves whilst they are it. Be careful though, those liberties will not be extended beyond the crisis season of Covid-19.

Challenge accepted.

Authored by Brenda Matanga & Gilbert Majirija | BMatanga IP Attorneys. 

Copyright (c) OCTOBER 18,2020 BMATANGA IP ATTORNEYS  

ALL RIGHTS RESERVED  

ⁱ At the time of writing of the article on 18/10/20

[1] He posted the song on Twitter

[2] There were reports of him purchasing a new Ferrari Sports car presumably from the proceeds of the hit song.

[3] To mind is a song by a South Korean singer Psy,Gangnam Style whose dance was attempted by  political leaders such as British Prime Minister David Cameron, U.S. President Barack Obama, and United Nations Secretary–General Ban Ki–moon, who hailed it as a force for world peace.

[4] It was the subject of a staff discussion at BMatanga IP Attorneys and it was that discussion which inspired t this article

[5] This is debatable of course but is an important factor as it introduces an interesting twist to the discourse.

[6] An agreement on Trade Related Aspects of Intellectual Property Rights between all member nations of the World Trade Organisation (WTO).

[7] This is in terms of Section 15 of the Copyright and Neighbouring Rights Act (Chapter

26:05)