Kwesta was cheated of his royalties on “Spirit”
And so a lot of you might know about Kwesta’s leaked split sheets for his hit song “Spirit” featuring American rapper, Wale, and that is because they were leaked online last year.
At the time, what caught the attention of a lot of people was the fact that among the people that were getting royalties for that song included; the Brenda Fassie estate, and the South African musical duo, Spiritchaser.
The Brenda Fassie part was not so surprising because her music was sampled in Kwesta’s song, however, Spiritchaser was also getting a cut of the royalties, and it wasn’t just any cut, it was actually the biggest cut coming at around 66.6%, which was way bigger than Kwesta’s portion of just 8.35%, the featured artist Wale got about 12.525% and Brenda Fassie got just about 4%.
And so at the time when the split sheets were leaked online, the assumption was that Kwesta’s producer, Makwa, had sampled Spiritchaser’s 2011 chart-topping hit song “These Tears”.
Later on during an interview, producer Makwa revealed that he did not sample Spiritchaser’s song and that therefore there was no need for the duo to be given any royalties.
‘Spirit’ was a remake because I didn’t use the sample from ‘These Tears’ by Spiritchaser, I replayed their piano,” Makwa stated during an interview.
But regardless, Spiritchaser ended up getting the majority of the publishing royalties from “Spirit”, which I think was a very big mistake. The answer itself lies in the fact that Makwa didn’t sample Spiritchaser’s song, but rather made a remake.
Watch “Spirit” by Kwesta featuring Wale below;
So you see, remakes are not necessarily legal but in this case, the part that was remade was the “Chord Progression”.
For your information, “Chord Progressions” are not copyrightable because if you do allow people to copyright certain “Chord Progressions”, then we are going to run out of “Chord Progressions” at some point simply because there is so much music being made all over the world on a daily basis.
But in some cases, the legal position of “Chord Progressions” is not as clear and depends on judges who a lot of times don’t even know anything about music. Melodies can be copyrighted and some can arise from “Chord Progressions”, if the Chord Progression is a distinctive element of the work, then it can be regarded as copyrightable.
In the case of Kwesta’s song Spirit, it was the same “Chord Progression” but it was kind of slowed down, and every other part of the two songs is very different with the only similarity just being the “Chord Progression” which is played in a different tempo.
My own personal opinion of this whole issue would be that the Chord Progression, in this case, is not copyrightable at all because that would mean that nobody else would essentially be able to play that Chord Progression commercially without infringing on Spiritchaser’s rights, which is unfair since “Chord Progressions” are regarded public domain.
However, that was just my own personal view, but the saddest part of this is that even if my theory turns out to be true, Kwesta and his team would probably not get back the money because it was their own negligence.
The only civil law remedy, in this case, would be unjustified enrichment, this is a scenario where an individual is unjustly enriched at the expense of another individual, and in this case, the law would oppose an obligation against the recipient to make restitution.
However, you know this kind of remedy is based on an excusable mistake, meaning that they would have to convince the court that giving Spiritchaser their royalties was an excusable mistake. But if Spiritchaser were the one that insisted on getting paid, then obviously they can’t be forced to pay it back.
