IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
GEORGE BOSOMPIM AND NII LANTE KUMI-BRUCE - (Plaintiff)
TV3 NETWORK LIMITED AND EVANS KUMI WADEWOR - (Defendant)
DATE: 31ST OCTOBER, 2016
SUIT NO: IPR/11/2013
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
MR. OWUSU AWUAH FOR THE PLAINTIFFS
MS. EDITH AKIWUMI WITH HER, JENNIFER ADJETEY FOR THE DEFENDANTS
Until the year 2013, the 1st plaintiff was an employee of the Gama Film Company Limited which had produced a television series known as Barber and Shoeshine Boy (BNS). This television series was being shown on the 1st defendant’s television network known as TV3. It so happened that when Gama was divested in the year 2013, the 1st defendant needed the continuous production of the television series BNS, so, according to the plaintiffs, the 1st defendant entered into an arrangement with the plaintiffs to continue with the production of the series for a fee of GH₵7,000 per episode that was produced.
After a while, the 1st defendant abrogated the contract with the plaintiffs for the production of the television series BNS and then engaged the 2nd defendant to produce the series. The 2nd defendant who then started producing the series did not acknowledge the plaintiffs in the television series subsequently produced. The plaintiffs claim that the concept, content and the music of Barber and the Shoeshine Boy was created and developed by them and that the actions of the defendants amounted to an infringement of their copyright and a plagiarism of their work. The defendants deny the plaintiffs’ allegations.
Therefore by a writ of summons issued on the 11th day of October, 2013 the plaintiffs claim against the defendants
a. A declaration that the defendants are infringing the copyright and plagiarizing the work of the plaintiffs.
b. Special damages of GH₵7,000 per episode aired since the abrogation of the contract between the parties herein.
c. General damages for plagiarism and for infringing the copyright of the plaintiffs.
d. Perpetual injunction restraining the defendants, their agents, servants, privies personal representatives from having anything or interfering with plaintiffs’ work.
An appearance was entered on behalf of the defendants and a statement of defence filed after the service of the writ and its accompanying statement of claim. In their amended statement of defence, the 1st defendant counterclaims against the plaintiffs for:
a. A declaration that 1st defendant is the owner of the copyright in the audiovisual work known as ‘Barber and Shoeshine Boy’ television series.
b. An order of perpetual injunction restraining plaintiffs, their agents, assigns and workmen from holding themselves out or otherwise laying any claim to the economic rights in the audiovisual work known as ‘Barber and Shoeshine Boy’ television series.
c. Costs including solicitor’s fees.
After the failure of pre-trial settlement proceedings the matter was set down for hearing and at the trial the plaintiffs gave evidence and closed their case. The 1st defendant also gave evidence through a representative and thereafter called witnesses to close its case. The 2nd defendant also gave evidence and announced the closure of his case.
From the reliefs endorsed on the writ of summons as well as the counterclaim filed by the 1st defendant and from the averments contained in the pleadings filed by the parties, the court is clear in its mind that the main issue between the parties, particularly, the plaintiffs and the 1st defendant is the question of who owns the copyright in the television series Barber and the Shoeshine Boy (BNS).
Given the state of the pleadings, the court is also of the view that the burden to produce evidence as well as the burden to persuade the court as to who is entitled to claim copyright in the television series Barber and the Shoeshine Boy rest equally on both the plaintiffs as well as the 1st defendant. This is so because the plaintiffs claim ownership and therefore copyright in Barber and the Shoeshine Boy and seek therefore a declaration of the court to that effect. The 1st defendant also claims ownership and therefore the copyright in the television series Barber and the Shoeshine Boy and, as a result, seeks a declaration to that effect.
Section 11(1) of the Evidence Act, 1975, NRCD 323 deals with the burden on a party to produce evidence. It states that:
For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.
Section 11(1) of NRCD 323 as quoted above is further elaborated in section 17 of the same Act which also states that
17. Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
Section 10 of the Act deals with the burden of persuasion. Section 10(1) states that
For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.
In a matter such as the present case the burden of persuasion requires a party to establish the existence or non-existence of a fact by a preponderance of the probabilities and as stated in section 14 except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.
In Ackah v Pergah Transport Ltd  SCGLR 728 the court re-stated the point that:
It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and (11(2) and (4) of the Evidence Act, 1975 (NRCD 323).
See also Nortey (No.2) vs. African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703.
In proof of his assertion the 1st plaintiff stated in his evidence in chief, given on the 18th day of May 2015, that he created Barber and the Shoeshine Boy, a TV series and that it was initially produced by Gama and shown on TV3 network every Friday evening. The 1st plaintiff tendered exhibit A, a certificate of registration of copyright. According to the 1st plaintiff “my role in there was the originator of the program by virtue of creating the concept, developing it, by creating the characters and the character paths and the roles of all the characters and everything that comes together within the content is derived.”
Under cross examination the 1st plaintiff added that “I created it [Barber and the Shoeshine Boy] by first developing a concept, creating the characters - their names, their ages, their occupation, their background, their character growth, the plots, sub-plots and finally was given the opportunity to produce it.”
The defendants have denied the plaintiffs’ assertion to ownership and copyright of the TV drama series Barber and the Shoeshine Boy. Under cross examination the 1st plaintiff admitted that Gama Film Company started the production of the television drama series BNS and that, in all, Gama Film
Company produced about 63 episodes of the drama series which was aired on the 1st defendant network. The 1st plaintiff stated under cross examination that a group, known as A4 Group, was credited with the concept of BNS. According to the 1st plaintiff the A4 Group was a pseudonym for himself and those who helped in the creation and the development of BNS and that the A4 pseudonym was created to avoid a constant repetition of his name as director and producer of the series. The 1st plaintiff also admitted that the A4 Group was made up of a number of people who were either workers of Gama Film Company Limited or the 1st defendant. The group members included Sammy Xevu, Joel Acheampong, and George Tetteh. The 1st plaintiff admitted that there were five people in the group. Under cross examination the following answers were given by the 1st plaintiff to questions put to him:
Q. What exactly did Sammy Xevu contribute?
A. I think he contributed in the title because I had said that the drama should be set in the barbering shop and outside the barbering shop. And so he had said outside then outside the barbering shop why can’t we have a shoe maker. And so I had added it to the title as Barber and the Shoeshine Boy.
Q. You mentioned Mr. George Tetteh?
Q. What did he also contribute?
A. Mr. Attey Tetteh, when I finished the characterization I showed it to him so he could help with the tweaking of the characters.
Q. And what exactly did he do?
A. And I think he did the name because there was a name I didn’t understand but I thought it was nice and I could put it in there, that was Jakpata and he looked at that for me.
Q. You said Mr. Sammy Xevu contributed the name to the series?
A. Yes my lord.
Q. You said other people also made contributions?
A. Yes my lord which is the normal thing when it comes to research. Because if you are doing characterization for instance, I am going to characterize somebody who comes from North, I have never lived in the North and I do not know their attitude and manners as well, I will definitely go to somebody who is a Northerner who has lived in a typical setting of that nature which is part of research.
Q. This was specifically to the concept as you said?
Q. Did you give them any credit?
A. Yes my lord, within the context of the A4 group, I had put that synonym there so they will all be covered.
From the answers given by the 1st plaintiff under cross examination the court finds that the concept and the development of the drama series BNS was not done by the 1st plaintiff alone and that it was done by so many people including the 1st plaintiff. Indeed, the answers given by the 1st plaintiff, which have been quoted above, corroborates the evidence given by the 1st defendant’s representative Samuel Xevu.
Samuel Xevu testified to the effect that the management of the 1st defendant decided to create a programs bank and so employees from 1st defendant and Gama Film Company were selected to attend a brainstorming programme at Sogakope where they were divided into groups to brainstorm and come up with concepts in various fields for development and subsequent production for television programs. According to Samuel Xevu, it was at Sogakope that he came up with the concept of Barber and the Shoeshine Boy which was accepted for further development by the group.
The 1st plaintiff gave the name of the group- the A4 Group because according to 1st plaintiff all concepts and contents start on an A4 sheet. The 1st defendant tendered in evidence exhibits 1 and 2 in support. Exhibit 1 shows that the 1st plaintiff and Samuel Xevu together with others were members of group 3. Exhibit 2 is the programme concept of Barber and the Shoeshine Boy. The 1st plaintiff, according to Samuel Xevu, came up with the characterization for the concept whiles Gama Film Company was tasked with the production of the series.
From the evidence on record the court has no reason to doubt the testimony of Samuel Xevu in respect of the conception and development of the television drama series Barber and the Shoeshine
Boy. No wonder therefore that the concept was credited to the A4 Group and the 1st plaintiff credited with characterization. This fact, as already noted, was admitted by the 1st plaintiff under cross examination. The court holds therefore that the 1st plaintiff cannot turn round and lay claim to the copyright of the series Barber and the Shoeshine Boy.
Again, there is evidence on record that Gama Film Company produced as many as sixty-three (63) episodes. It is admitted by the 1st plaintiff that on all the sixty–three episodes Gama was credited with the copyright. This happened at a time the 1st plaintiff was an employee of Gama. If it is true that copyright in Barber and the Shoeshine Boy vests in the 1st plaintiff, one would have expected the 1st plaintiff to raise that issue at the first opportunity and not wait till Gama had been divested.
Again the 1st plaintiff had admitted that at the time of production he was the director and producer of the drama series who directed same in his capacity as an employee of Gama. It follows therefore that the task of giving credit to those who contributed to the overall creation and production of the series was discharged with the input and or supervision of the 1st plaintiff. It therefore does not lie in his rights to turn round and claim copyright in the series after the divestiture of Gama. The conduct of the 1st plaintiff as stated herein is a direct acknowledgment that the copyright in the barber and the shoeshine boy television series belong to his former employer Gama Film Company Limited and therefore the 1st plaintiff is estopped from laying claim thereto as stated in section 26 of the Evidence Act 1975, NRCD 323 that
26. Estoppel by own statement or conduct
Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between
(a) that party or the successors in interest of that party, and
(b) the relying person or successors in interest of that person.
See Sefa & Asiedu (No.2) vs. Bank of Ghana (No.2); Gyamfi (No.2) vs. Bank of Ghana (No.2) (Consolidated) [2013-2014] 1 SCGLR 530 and Duodu & Others vs. Adomako & Adomako  1 SCGLR 198.
The 1st plaintiff does not deny that the conception of BNS took place at Sogakope when staffs of Gama
Film Company and TV3 were put together for a brainstorming exercise. The 1st plaintiff has admitted that all those who took part in the exercise at Sogakope were either staff of Gama Film Company Limited or TV3 Network Limited. The members of the A4 Group were present at Sogakope in their capacities as employees of either Gama Film Company Limited or the 1st defendant company. The 1st plaintiff made admission to the fact that he was at Sogakope as an employee of Gama. There is evidence on record that all expenses at Sogakope was borne by the 1st defendant and none of those present including the 1st plaintiff paid for his own expenses. It is therefore reasonable to conclude that whiles at Sogakope the group members including the 1st plaintiff were working for their employers. According to the 1st plaintiff he was employed as a Producer/Director with Gama Film Company
Limited and that he was the manager for production services. The 1st plaintiff has admitted that the work of a producer in the making of a drama series includes basically the supervision of all departments. The producer hires the director who interprets the story or the script. The 1st plaintiff has also admitted that he produced the drama series barber and shoeshine boy whilst in the employment of Gama Films and that his work as producer was part of his job description as producer/director. There is evidence by Mark Gilbert Coleman that the 1st plaintiff served under him at Gama Films for years including the period when BNS was produced and that in producing the drama series they were all acting in their capacities as employees of Gama. The position of the common law is that unless there is an agreement between an employer and his employee to the contrary, works prepared by an employee in the course of his employment belongs to his employer and that the copyright in such works belong to the employer. This position of the common law is re-stated by section 7 of the Copyright Act, 2005, Act 690 which provides that
7. Employed authors
In the absence of a contract to the contrary, the economic right of a work shall vest in an employer or a person who commissions the work where the employed or commissioned author has created the work in the course of the employment or commission.
In the case of Community for Creative Non-Violence vs. Reid 490 U.S. 730 (1989), the Supreme Court of the United States stated that as far as the determination of authorship of works made for hire is concerned, the term ‘employee’ must be interpreted having regard to general common law principles of agency. If the author of the works is an employee under the common law principles of agency and the work was done within the scope of the employment then, the employer as opposed to the employee is the copy right owner of the works. The court identified some of the characteristics of employer/employee relationship. According to the court, if the employer exercises control over the work in respect of how the work must be done, if the employer provides equipment for the execution of the work, if the work is done at the work place of the employer then the relationship is that of an employer/employee. Again it is important to find out whether the employer exercises control over the worker. If the employer has the right to decide what work must be done by the worker, the employer determines how the worker must be paid, if the employer has the right to decide who should assist the worker in the discharge of the works then the relationship is that of employer/employee. Again the court considered the status of the employer. If the employer’s business is the production of the work in issue, if the employer deducts taxes from the worker’s remuneration and provides the worker with benefits equivalent to those received by other workers, then the relationship is that of employer/employee. The presence of these factors is suggestive of the fact that the work in issue was done for the employer and consequently, the copyright in the work vests in the employer and not the worker.
Although the Reid case was decided by the U.S. Supreme Court its persuasive effect is too strong to be ignored by this court. The court will adopt and apply the case to the facts of this case and hold that all the factors laid down by the Reid case are manifestly present in the instant action. The 1st plaintiff has admitted that he was an employee of Gama. He has admitted that he was sent to Sogakope by Gama. He has admitted that the Barber and Shoeshine Boy was conceived at Sogakope during the brain storming exercise. He has admitted that some of the members of the A4 group made contribution to the development of the drama series. The 1st plaintiff has admitted that Barber and Shoeshine Boy was produced by Gama, his employer, who was credited with the copyright. He has admitted that his expenses at Sogakope were not borne by himself but his employer.
See also Musicians Union of Ghana vs. Abraham and Another [1982-83] GLR 337.
There is evidence on record that the 1st plaintiff was under supervision of his immediate boss Mark
Gilbert Coleman. There is no evidence by the 1st plaintiff that the equipment used in the production of the drama series was provided by himself and or that he bore the cost of production of the series. On the contrary, it is reasonable to assume that once the drama series was, as admitted by the 1st plaintiff, produced by Gama, then it is Gama that bore all the expenses of production. The court holds therefore that the evidence is overwhelming that the copyright in the television drama series Barber and the Shoeshine Boy does not belong to the 1st plaintiff. It follows therefore that the 1st plaintiff has no right to register any copyright in the television drama series barber and the shoeshine boy as he did in exhibit ‘A’. ***
The 2nd plaintiff’s claim is that he is the creator and the copyright owner of the sound track in the television drama series barber and the shoeshine boy. According to him in the year 2013 he noticed that the 1st and the 2nd defendants had, without the consent of the 2nd plaintiff, removed his name from the credits in the drama series barber and shoeshine boy which they were showing on their television network. After some investigations he together with the 1st plaintiff instituted the instant action for the reliefs endorsed on the writ against the defendants.
In their statement of defence the defendants have pleaded at paragraph 4 that they commissioned GFC to produce the BNS series, hence the plaintiffs produced the BNS series in their capacity as employees of GFC and that payments were effected by them.
This assertion by the defendants has been denied by the plaintiffs. The 2nd plaintiff has denied ever working for either Gama Film Company or TV3 Network Limited the 1st defendant herein. It is therefore the duty of the defendants to adduce evidence to prove this claim which they assert. The court has explained in Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  2 SCGLR 845 at 867 that
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
The court finds from the evidence on record that the defendants have failed to lead evidence to show that the 2nd plaintiff ever worked for Gama Film Company Limited as an employee. The court holds that the 2nd plaintiff, at all times material to the instant matter, was an independent contractor and not an employee of GFC as alleged by the defendants.
From the statement of defence the court finds that the defendants have admitted in paragraph 6 thereof that the 2nd plaintiff is the composer of the music used as the signature tune for the BNS series. The defendants’ witness, Mark Gilbert Coleman who testified as DW2 also made admissions to the same effect in favour of the 2nd plaintiff.
The defendants have asserted however that the 2nd plaintiff was commissioned and duly paid for the composition of the said music. This assertion by the defendants in paragraph 6 of their statement of defence sharply contradicts the allegation by the defendants in paragraph 4 of the same statement of defence that the 2nd plaintiff produced the music in his capacity as an employee of GFC. However, be that as it may, the 2nd plaintiff has denied receiving payment for his music. Indeed, the 2nd plaintiff has stated in strong terms that the 1st defendant did not finance the composition of the music used as the signature tune for BNS. Here again, the law imposes the burden of proof on the defendants for their allegation of payment to the 2nd plaintiff. Thus, it is the duty of the defendants to lead evidence that the 2nd plaintiff had been paid for the music which he produced for the drama series, the barber and the shoeshine boy. The law is that ownership and copyright in works is vested in the creator of the work unless there is an agreement to the contrary. See the Australian case of Telephonic Communicators International Pty Ltd. vs. Motor Solutions Australia Pty Ltd.  FCA 942.
The evidence of Mark Gilbert Coleman is to the effect that Gama Film Company Limited organised a competition dubbed Bands Alive and that the 2nd plaintiff and his band, the BIB, won the competition and they were given musical instrument as well as sponsorship so when the issue of the composition of the signature tune for Barber and shoeshine boy came up, Gama Film contacted 2nd plaintiff who then did the song free of charge for Gama Film Company. DW2 was emphatic that no payment was made to the 2nd plaintiff. The admission by DW2 that no payment was ever made to the 2nd plaintiff corroborates the 2nd plaintiff’s assertion that he has not been paid for the music score which he composed and which was used as the signature tune for the drama. Again the said admission at the same time contradicts the averment by the defendants that the 2nd plaintiff was paid for the music score he did for the barber and the shoeshine boy. In this regard, the court is enjoined to accept the pleading and the evidence of the 2nd plaintiff on this issue as against that of the defendants as stated in Asante vs. Bogyabi  GLR 232 that
“Where the evidence of one party on an issue in a suit was corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stood uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason (which must appear on the face of the judgment) the court found the corroborated version incredible or impossible.”
The 2nd plaintiff has denied being the winner of the Bands Alive competition. He has also denied receiving any instrument from Gama Film Company Limited. However, short of stating that the 2nd plaintiff and his BIB band won the Bands Alive competition and were given musical instruments, which evidence have been denied by the 2nd plaintiff, no concrete evidence has been proffered on behalf of the defendants. Again there is no concrete evidence by the defendants that the 2nd plaintiff did the music score for the barber and shoeshine free of charge and also as a gift to Gama. There is no agreement tendered to show that the 2nd plaintiff intended that the copyright in the music score shall vests in Gama.
These are matters which, in the view of the court, are capable of positive proof if they in fact existed.
In the opinion of the court, in so far as the defendants could have positively proved that the 2nd plaintiff’s band BIB won the Bands Alive competition and were given musical instruments for which reason they also agreed to compose the music score in barber and shoeshine free of charge for Gama; and to the extent that the defendants could have tendered in evidence an agreement with the 2nd plaintiff assigning the copyright in the music score to Gama, their failure to do so leaves the court with no choice but infer that the allegations by the defendants are not true and have not been proved. Hence, as far as these issues are concerned, a ruling ought to be made against the defendants. See, Zabrama vs. Segbedzi  2 GLR 221. The court will therefore hold that the copyright in the music score used as the signature tune in the drama series barber and the shoeshine boy vests in the 2nd plaintiff and therefore the defendants, contrary to their plea in paragraph 22 of their statement of defence, require the consent of the 2nd plaintiff, to use same and hence, the failure of the defendants in using the signature tune without the consent of the 2nd plaintiff constitutes an infringement of the 2nd plaintiff’s copyright.
A critical examination of the statement of defence and counterclaim filed by the defendants on the 17th June, 2014 reveals that the 1st defendant, in particular, claims ownership and copyright to Barber and the Shoeshine Boy by means of two modes of acquisition.
Firstly, the 1st defendant says in paragraph 3 of the statement of defence that “it is the creator and owner of the copyright series Barber and the Shoeshine Boy.” By this pleading the 1st defendant is understood to be saying that it owns the copyright of Barber and the Shoeshine Boy by virtue of the fact that it created it.
Secondly, the 1st defendant says in paragraphs 7, 12 and 21 of the statement of defence that it owns the copyright in the Barber and the Shoeshine Boy by virtue of the acquisition of all the tangible and intangible assets of Gama Film Company Limited, including the TV series in contention herein, when the GFC was placed on divestiture by the Government of Ghana. Again, by these averments, the 1st defendant is understood to be saying that it is the copyright owner of Barber and the Shoeshine Boy by virtue of purchase of Gama Film Company Limited from the Government of Ghana. The plaintiffs deny the claims of the 1st defendant.
Even before the court proceeds to examine the claim of the 1st defendant, the court wishes to observe that the two positions asserted by the 1st defendant is a non sequitor and that it cannot be correct that the 1st defendant is copyright owner of Barber and the Shoeshine Boy by virtue of original creation and at the same time by virtue of purchase. The two positions cannot co-exist.
In respect of the plea of ownership of the copyright of Barber and the Shoeshine Boy by virtue of purchase of the assets of Gama Film Company Limited, the 1st defendant called one Dela Zumanu who testified as DW1. Dela Zumanu tendered in evidence exhibit 4, a letter from the 1st defendant to the Executive Secretary of the Divestiture Implementation Committee dated 29th July, 2013. By exhibit 4, the 1st defendant made an offer to buy certain properties of Gama including barber and the shoeshine boy at a stated price. Upon the receipt of exhibit 4, the Divestiture Implementation Committee responded by writing exhibit 5 in which it made a counter offer to the 1st defendant to sell the properties to the 1st defendant at prices higher than what was offered by the 1st defendant per exhibit 4. There is no evidence that the 1st defendant accepted the offer contained in exhibit 5 made by the Divestiture Implementation Committee. Exhibits 4 and 5 constitute an offer and a counter-offer.
The court has not been furnished with any evidence that the 1st defendant accepted the offer made in exhibit 5 by the Divestiture Implementation Committee. Neither is there any documentary proof of payment for the alleged purchase of barber and the shoeshine boy by the 1st defendant. Exhibits E and G are also proof of the fact that the copyright in barber and shoeshine boy has not been sold to or acquired by the 1st defendant. Hence, it is the holding of the court that the 1st defendant has not proved that it has bought the copyright of the television series barber and the shoeshine boy.
The 1st defendant has averred in its statement of defence that it is the creator and owner of the copyright in barber and the shoeshine boy and that it commissioned GFC to produce the BNS series.
Here again, the court finds no evidence on record by which the 1st defendant either created the drama series or commissioned GFC to produce same for and on behalf of the 1st defendant. There is evidence on record that staff of both the 1st defendant and Gama Film Company Limited held a meeting at Sogakope where the idea of the barber and the shoeshine boy was conceived by one of the groups referred to as A4 Group. The court finds that the A4 Group which conceived the idea of barber and the shoeshine boy was made up of staff of both the 1st defendant and Gama Film Company Limited. However the law is settled that one cannot claim copyright for ideas and concepts. See, section 2 of the Copyright Act, 2005 Act 690 and the case of Pearson Education Ltd vs. Adzei  2 SCGLR 864.
Nonetheless, there is evidence on record that after the conception of the idea, Gama Film Company Limited developed the concept into drama series and started looking for various television stations to show it on their network before they finally got the 1st defendant to show it on its network. There is evidence that the copyright in the series was credited to Gama Film Company Limited whilst the series was being shown on the 1st defendant network; yet, there is no evidence of any protest or challenge or claim by the 1st defendant to the copyright attribution to Gama Film Company Limited in the barber and the shoeshine boy. One would have expected that if it is true that the 1st defendant commissioned Gama Film Company Limited to produce the drama series for the 1st defendant, the 1st defendant would have protested the credit of copyright in the series to Gama Film Company Limited.
In the opinion of the court section 26 of the Evidence Act, 1975, NRCD 323 operates to estop the 1st defendant from the lame claim to the copyright in the drama series. Again if it is true that copyright in barber and the shoeshine boy vested in the 1st defendant by virtue of commissioning Gama Films to produce same for the 1st defendant, then why did the 1st defendant turned round and made an offer per exhibit 4 to purchase the barber and the shoeshine boy. Again section 26 of NRCD 323 operates to estop the 1st defendant from making any such claim to the drama series. On the evidence as a whole the court will hold that the 1st defendant has failed to adduce evidence to show that it owns the copyright in barber and the shoeshine boy either by original creation or by purchase. The court will therefore dismiss the counterclaim filed by the 1st defendant.
From the evidence on record the court finds that the 2nd defendant is a Film as well as a Television Producer. The court also finds that the 2nd defendant was contracted by the 1st defendant to produce and direct the television drama series barber and the shoeshine boy. This was done after the 1st defendant had terminated its contract with Enigma Images Limited as shown by exhibit B. The complaint of the 2nd plaintiff is that the defendants have deliberately deleted the 2nd plaintiff’s name from the montage and end credits and are claiming the ownership of the copyright of the series. On this issue the 2nd defendant stated in his evidence in chief that he
“Was contracted by TV 3 to produce and direct BNS. I know BNS is a TV 3 Production. When I was contracted as the Producer/Director of the show, to make the show better I changed the soundtrack and some of the characters of the show. That was somewhere in 2013… I started the show without giving credit to anybody. I know the production is for TV 3 though. Three (3) months later I changed the soundtrack and since October 2013 to date, I have been using a new should track for the production. Hence, I cannot give credit to Nii Lante Kumi Bruce for the new soundtrack.”
The court can infer from the above evidence given by the 2nd defendant that immediately after the 2nd defendant had taken charge of the production of the television series in question, the 2nd defendant failed to give credit even of the sound track to the 2nd plaintiff who is the copyright owner of same and that this trend continued till the 2nd defendant changed the soundtrack three months after the take-over. In the opinion of the court, the evidence given by the 2nd defendant herein corroborates the 2nd plaintiff’s allegation that the defendants refused to give credit to him for the use of his soundtrack. The court will hold therefore that the conduct of the defendants in so doing constitutes a plagiarization of the 2nd plaintiff’s work as far as the soundtrack in barber and shoeshine is concerned and the use of the sound track in the television series, barber and the shoeshine boy by the defendants without the consent or permission of the 2nd plaintiff is an infringement of the copyright of the 2nd plaintiff in the sound track. Accordingly the court holds that the defendants are liable to the 2nd plaintiff in damages.
The evidence on record shows that the 2nd plaintiff consented to the use of his sound track by the defendants for the fourteen (14) episodes which the defendants showed on its network after the defendants have entered into an agreement with Enigma Images Limited. The 2nd plaintiff stated in his evidence in chief that the 1st defendant approached him and the 1st plaintiff that they wanted to continue showing the episodes on their network after Gama Film Company Limited had been divested and he gave his consent. According to the 2nd plaintiff, it was only after the first fourteen (14) episodes that his name was deleted from the credits. In the opinion of the court therefore the infringement of the 2nd plaintiff’s copyright began immediately after the end of the fourteen episodes. This infringement continued for a period of three months before the 2nd defendant changed the sound track. Indeed, the evidence by the 2nd defendant that he changed the sound track after three months has not been challenged by the 2nd plaintiff. The court therefore finds that as a fact. The court finds also that the 2nd plaintiff has admitted that the sound track which he composed cannot be used with any other production apart from barber and the shoeshine boy.
The 2nd plaintiff stated that he agreed to accept GH₵300.00 per episode as his fees from Enigma Images Limited for the use of his sound track. Indeed, this amount was paid for all the fourteen episodes which the 1st defendant showed on its network. Exhibit B which was executed on the 2nd April, 2013 required Enigma Images Limited to produce four (4) episodes of barber and shoeshine boy for the month of April. The 1st plaintiff gave evidence to the effect that Enigma Images Limited was to produce four episodes a month making an average of one episode a week and that Enigma Images
Limited did fourteen productions in all before their agreement with 1st defendant was abrogated.
Given the fact that one episode was aired by the 1st defendant every week and considering that the series was shown for three months before the 2nd defendant changed the sound track, it implies that at least the 2nd plaintiff’s sound track was used unlawfully by the defendants for a period of twelve weeks if the court is to take judicial notice of the fact that averagely there are four weeks in a month.
In the circumstances the court will award as special damages to the 2nd plaintiff the sum of GH₵300.00 × 12 making a total of GH₵3600.00. The court will also award the 2nd plaintiff the sum of GH₵10,000.00 in general damages for the infringement of his copyright by the defendants. The 2nd plaintiff prays for injunction to restrain the defendant from infringement of his copyright. The courts have held that infringement of copyright will be restrained even if no damage was proved or shown by the copyright owner. See Weatherby vs. International Horse Agency & Exchange Co.  2 Ch. 305 and British Broadcasting Co. vs. Wireless League Gazette Publishing Co.  1 Ch. 442. The court will therefore restrain the defendants, their agents, servants, privies, personal representatives and all others claiming through them from using and or interfering with the copyright of the 2nd plaintiff in the sound track which he composed for the barber and the shoeshine boy. The court will also award costs of GH₵2,000.00 to the 2nd plaintiff against the defendants. There will be no costs against the 1st plaintiff.