When artistes create, but others cash in. . . The battle to protect Zimbabwe’s musical identity

Mbulelo Mpofu [email protected]

FOR Zimbabwean musicians, the struggle to protect intellectual property (IP) is increasingly being fought at the intersection of creativity, commerce, technology and personal identity.

While the country has laws designed to protect creative works, questions are increasingly being raised about whether those laws are sufficiently equipped – and sufficiently enforced – to protect musicians in an industry that has dramatically evolved.

The debate has been reignited by musician Fungisai Zvakavapano Mashavave, who took to Facebook to express her frustration after following the performance of her song, “Tende Kudenga” at the EcoBank Legends Night in Harare, allegedly, without her prior consent.

Mashavave’s grievance, however, appeared to go beyond the alleged performance of her song. According to her account, the performers allegedly replicated her music, “note for note, word for word”, while also copying her movements, clothing, mannerisms and overall artistic presentation.

“People impersonating you, replicating your music as is and gathering commercial value from your works without your consent?” she wrote, questioning why the performers were allegedly engaged at a lower fee instead of the event organisers approaching her directly.

“Why replace me at a nominal fee and create unfair market competition for me uchishandisa personality yangu, music yangu, ma mannerism angu, necreativity yangu and not even bother asking for my permission?” she asked.

Her outburst has consequently opened a much wider conversation about whether Zimbabwe’s legal framework adequately protects musicians when their work, identity and commercial value are allegedly appropriated. At the heart of the matter is a difficult question: where does the right to perform another artiste’s music end and the right of an artiste to control their identity, image, mannerisms and commercial persona begin?

Zimbabwe’s Copyright and Neighbouring Rights Act [Chapter 26:05] provides the primary legal foundation for protecting musical works. The Act recognises copyright in creative works and provides protection for the economic and moral interests of creators. It also provides rights relating to performances and establishes circumstances in which copyright may be infringed.

On paper, therefore, Zimbabwe is not without protection. The problem lies increasingly in the gap between what the law provides and what artists can realistically enforce.

A crucial distinction must first be made between a legitimate cover performance and impersonation. The performance of another musician’s song is not automatically unlawful merely because the original artiste is not present. Depending on the circumstances and the applicable licensing arrangements, covers can be legitimate forms of musical expression.

Mashavave’s complaint, however, raises a different issue. Her allegation is that the performers did not merely sing, “Tende Kudenga”. They allegedly reproduced her distinctive performance identity, including her movements and mannerisms, while event organisers allegedly benefited commercially from the performance.

If established, that raises questions extending beyond conventional copyright infringement. A song can be protected as a musical work. A recording can attract separate rights. A performer can have neighbouring rights. But the law becomes less straightforward when the alleged appropriation concerns the persona surrounding the work.

This is particularly important in an era where an artist’s identity itself has become a commercial asset. Musicians build recognisable brands through their voices, appearance, choreography, stage presence, catchphrases, costumes and other characteristics. For an established artiste, these elements can be worth as much commercially as the music itself.

The Copyright and Neighbouring Rights Act remains central to the protection of Zimbabwean musicians, but the environment in which music operates has changed dramatically. Streaming services, social-media platforms, short-form video, digital advertising and artificial intelligence have transformed how music is produced, distributed and monetised.

A song can now be copied, sampled, synchronised into advertising, uploaded to social media or manipulated using artificial intelligence within minutes. The traditional distinction between a physical recording, a live performance and a broadcast has become increasingly blurred. This creates challenges for legislation that was developed before today’s digital ecosystem became dominant.

The issue is not simply whether the law recognises copyright. It is whether the law provides clear, practical and rapid mechanisms for dealing with modern forms of exploitation.

Digital piracy, online royalty collection, algorithmic distribution and AI-generated replicas present challenges that were barely imaginable when older copyright provisions were developed.

But even where existing law can technically accommodate a particular infringement, enforcement remains a major concern. A musician with limited resources may struggle to pursue a well-financed company or organisation through the courts. A right that cannot be enforced affordably risks becoming little more than a theoretical protection.

Mashavave’s reference to moral copyright is particularly significant. Copyright is not only about money. Moral rights recognise the personal connection between creators and their works and, in appropriate circumstances, protect creators from certain unauthorised treatment of or association with their creations.

For musicians, that relationship can be deeply personal. Songs can become extensions of an artist’s identity, career and legacy. Consequently, Mashavave’s complaint is not simply about losing a performance opportunity or fee.

Her concern is that elements she spent years developing could allegedly be reproduced by others and commercially exploited without her participation.

“Hazvisi nyore for us especially because we are easily mobbed down and robbed of our right to our own legacies,” she wrote.

That statement also introduces an uncomfortable industry reality: some artistes may choose silence because they fear professional victimisation.

If musicians believe that challenging powerful institutions, promoters or fellow industry players will result in blacklisting or hostility, the problem becomes larger than legislation. It becomes a question of power.

Mashavave also questioned whether the Competition Act [Chapter 14:28] could provide another avenue of protection. The Act is designed primarily to promote competition and address restrictive practices, monopolies and other forms of anti-competitive conduct.

However, competition law cannot simply be used as a replacement for copyright law. The alleged decision to engage another performer at a cheaper rate would not automatically constitute an unlawful competition practice. Yet the broader issue raised by Mashavave – unequal bargaining power – deserves scrutiny. Musicians routinely negotiate with broadcasters, promoters, telecommunications companies, corporate sponsors and other powerful commercial entities.

A major corporation may have lawyers and substantial financial resources, while an individual musician may have limited access to professional legal advice. The result can be an unequal negotiating environment in which artists accept unfavourable terms because they cannot afford to walk away from opportunities.

The music industry may therefore need greater discussion around fair contracts, licensing, collective bargaining and the protection of creators from exploitative commercial arrangements. Mashavave’s reference to the tort of passing off brings the question of artistic identity into even sharper focus. Passing off is a common-law remedy designed to prevent one party from misrepresenting its goods or services as those of another.

In Zimbabwe, a claimant generally has to establish goodwill or reputation, misrepresentation and damage. That can present significant difficulties for an independent musician. An artiste may know that their identity has allegedly been copied, but proving the necessary elements in court can require substantial evidence.

Passing off is also essentially a civil remedy, meaning that an artist seeking urgent protection may have to incur significant legal expenses. Again, the distinction between having a legal remedy and being able to afford that remedy becomes critical.

The lesson from the Mashavave controversy should not be that Zimbabwe has no laws protecting musicians. Rather, it is that the existing legal and institutional framework may require modernisation and stronger implementation.

The creative economy needs laws and enforcement mechanisms capable of responding to digital exploitation, artificial-intelligence replication, commercial impersonation, unauthorised use of artistic identities and new forms of music distribution.

There is also a pressing need for greater legal literacy among musicians. Too many creative agreements remain informal. Permissions may be verbal, licensing arrangements poorly understood and ownership rights insufficiently documented. By the time a dispute becomes public, the alleged harm may already have occurred.

Mashavave’s Facebook rant should therefore be viewed as more than an individual dispute. It raises a fundamental question about how Zimbabwe values creative labour. If an artiste spends years creating music, developing a distinctive performance style, cultivating an audience and building a commercial identity, what protection exists when another party allegedly reproduces those elements and profits from them?

At the same time, the law must maintain a careful balance. Artistes cannot reasonably claim ownership over every interpretation, cover, influence or tribute. Music thrives through reinterpretation, collaboration and artistic exchange. But there must also be a meaningful line between legitimate homage and commercial appropriation.

The central question is consequently not merely whether Zimbabwe has copyright, competition and common-law remedies. It is whether those remedies are accessible, affordable, understandable, enforceable and modern enough for the industry they are intended to protect.

Mashavave’s complaint has brought that question into sharp relief. For Zimbabwean musicians, the battle is no longer simply about who owns a song. It is increasingly about who controls the value surrounding that song – the music, the performance, the personality, the identity and ultimately the legacy.

Until the legal framework and its enforcement mechanisms catch up with that reality, musicians may continue to find themselves in the paradoxical position of creating valuable IP while struggling to protect the very value they have created. – Follow on X @MbuleloMpofu