Online Reporter
Tafadzwa Zimoyo
Zimpapers Entertainment Editor
GOSPEL musician Fungisai Zvakavapano Mashavave has reignited debate over artistic ownership after questioning whether performers and institutions can commercially reproduce another artiste’s music, images and mannerisms without permission.
In a strongly worded social-media statement, Fungisai said she had remained silent in the interests of peace and Ubuntu, but had now decided to speak after what she described as excessive imitation of her artistic identity.
“Imagine people impersonating you, replicating your music as is and gathering commercial value from your works without your consent?” she said.
“Not even a ‘cover’ but note for note, word for word, every move and artistic mannerism.”
She also questioned why an institution would allegedly choose another performer at a cheaper fee while, in her view, using elements of her established artistic identity.
“Why replace me at a nominal fee and create unfair market competition for me using my personality, my music, my mannerisms and my creativity and not even bother asking for my permission?” she asked.
The comments have attracted attention because they raise a bigger question for Zimbabwe’s entertainment industry:
Should artistes simply accept imitation as part of the creative business, or should there be a clearer line between inspiration, tribute, competition and infringement?
Some have asked: Is Fungisai legally right?
That question cannot be answered from a social-media post alone.
Zimbabwe’s Copyright and Neighbouring Rights Act (Chapter 26:05) does provide meaningful protection for qualifying creative works.
The Act says copyright is infringed when a person, without the copyright owner’s authority, carries out an act which the owner has the exclusive right to do or authorise.
More importantly, the law provides a direct route for enforcement.
Section 52 states that copyright infringement is actionable at the suit of the copyright owner, with remedies including damages, an interdict, an account of profits and delivery of infringing copies or articles.
Proceedings can be brought before the Intellectual Property Tribunal, the High Court or, within its jurisdictional limits, the Magistrates’ Court.
So, if Fungisai can establish that protected musical works have been reproduced or commercially exploited without authority, a legal mechanism is available to her.
The Act even allows damages in certain circumstances to be calculated by reference to a reasonable royalty that would have been payable by a licensee.
That raises an obvious question: If the alleged conduct is as serious and commercially damaging as Fungisai describes, why not take the evidence before the appropriate forum and let the law decide?
On to the issue of style, this is where the issue becomes complicated.
An artiste cannot necessarily claim exclusive ownership over every aspect of a public persona.
A hairstyle, outfit, dance move, stage energy, or general artistic style is not automatically protected simply because one performer became associated with it.
Copyright protects qualifying works and expression.
The law itself distinguishes between different categories of protected works, including musical, artistic and audio-visual works.
Therefore, if the complaint concerns an actual musical composition, lyrics, recording or other protected work being reproduced, the copyright argument may be considerably stronger.
But if the complaint is primarily that someone looks like Fungisai, dresses like her or adopts similar mannerisms, the legal question becomes much more difficult.
That does not necessarily mean there is no legal remedy. It means the correct legal basis would have to be established.
Fungisai also referred to the common-law principle of passing off.
Zimbabwean case law shows that passing off is concerned with protecting goodwill and reputation against misleading representations.
The Supreme Court has stressed the need to establish reputation or goodwill, misrepresentation, and damage.
In simple terms, the issue would be whether the alleged imitation is merely similar — or whether it is being presented in a way that could make the public believe there is an endorsement, connection or association with Fungisai when there is none.
That is a much more demanding proposition than simply proving that two performers have similar styles.
Fungisai also raises the issue of unfair market competition. The Competition Act (Chapter 14:28) provides mechanisms concerning unfair business practices and allows a person who suffers injury, loss or harm from conduct covered by section 43 to seek damages.
Then, on tribute or replacement, the issue becomes even more interesting in an entertainment industry where tribute performances are increasingly popular.
Should tribute be allowed?
Absolutely.
But should tribute become a commercial substitute for the original creator without consent?
That is a different question.
The entertainment industry cannot realistically outlaw artistic influence.
Musicians learn from musicians.
Performers borrow styles.
New generations reinterpret old songs.
Without that exchange, culture itself would struggle to evolve.
But there must also be a point where borrowing becomes copying — and copying becomes commercially damaging.
The challenge is determining where that line sits. Why not sue? This may ultimately be the most important question arising from Fungisai’s statement.
If she possesses evidence showing that her copyrighted works were reproduced without permission, the law provides a route to pursue the matter.
It requires evidence, ownership, proof of copying, proof of commercial use, and proof of damage.
That may explain why public accusations and legal proceedings are two very different things.
