THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
HIGH COURT CIVIL SUIT NO.0967 OF 2004
ANN ABELS KIRUTA
T/A ‘97 AFRICA ARTS & CRAFTS …………………………………..……...DEFENDANT
BEFORE THE HON. JUSTICE GEOFFREY KIRYABWIRE
The plaintiff Stella Atal brought this suit against the defendant, Ann Abels Kiruta for copyright infringement and conversion and for an injunction restraining the defendant from further infringement, an account in respect of such infringement, special, general and exemplary damages for infringement, and damages for conversion plus costs for the suit.
The brief facts of this case are that the plaintiff an artist authored various artistic works. That sometime between 2001 to 26thMay 2003, the plaintiff was engaged in supplying the defendant with her artistic works for sale in her stores. It is the case for the plaintiff that about early May 2003, the plaintiff came to learn from her assistant, Mr. Andrew Morgan Aloka that the defendant had approached him with a view of engaging him to produce, reproduce and or fabricate the plaintiff’s artistic works at a cheaper price, than what the plaintiff was selling them. Upon learning of the defendant’s dealings, the plaintiff terminated all supply dealings of her artistic works to the defendant. It is the case for the plaintiff that after termination of the dealings with the defendant, the plaintiff came to discover that the defendant was already engaged in the infringement of her work copyrights for her various artistic works by reproducing counterfeit copies and making duplicate reproductions of the plaintiff’s best selling art pieces. The plaintiff therefore avers that the defendant has continuously infringed the copyrights of each of the plaintiff’s artistic works by using the plaintiff’s created and developed ideas without a license, approval or consent from the plaintiff and therefore was unlawfully publishing, producing, reproducing and distributing a selection of unauthorized copies of the plaintiff’s artistic works.
The defendant, however, denies liability and avers that she engaged the plaintiff between 2001 and 2003 and employed the plaintiff to produce and offer for sale artistic works based on pre- existing African symbols, articles and pictographs. The defendant further avers that it was orally agreed by the two parties that the defendant was to cater for the plaintiff’s accommodation and working space for as long as the contractual relationship subsisted. The defendant also averred that it was further agreed that the plaintiff was to produce particular artistic works for the defendant exclusively, during the period of the plaintiff’s employment. The defendant contends that during the course of their relationship, the plaintiff made and sold similar art-crafts bearing the artistic works to other persons and businesses which at the time should have been produced exclusively for the defendant. The defendant therefore contends that she had to sever the relations with the plaintiff because of the foregoing reasons and because it was not viable to continue to do business in the said artistic works as the market was flooded with similar works.
The defendant in her defence raised a counter claim against the plaintiff seeking general damages for breach of contract of license and loss of income, a declaration that the defendant is the owner of the copyright in the artistic works made by the plaintiff during her employment with the defendant, detinue and conversion, delivery up of artworks under license or copyright to the defendant or the payment of the market value thereof and costs for the suit.
The defendant/ counterclaimant contends that the plaintiff breached the license agreement for the copyrights in the artistic works. That during the existence of the said license, the plaintiff sold artistic works to various people and distribution businesses in Kampala and elsewhere contrary to the exclusivity term of the license agreement. The defendant/counterclaimant further averred that the plaintiff during her employment with the defendant/counterclaimant took various artistic works from the defendant and that she has ignored, refused and failed to return them despite the numerous remainders. It is the defendant/