The Evidentiary Threshold In Copyright Litigation: A Strategic Guide For Lawyers And Creatives

Introduction

As Nigeria’s creative economy continues to flourish, its intellectual property landscape is evolving just as rapidly. Yet, when disputes arise, the courtroom demands more than perceived similarities or a sense of unfairness. Under the Copyright Act 2022, the statutory bedrock for protecting creative expressions, a successful infringement claim must be firmly anchored in strict evidentiary proof.

This reality was brought into sharp focus by two recent Federal High Court decisions: Walls and Gates Ltd & Anor v. MTN Nigeria Communications PLC¹ (6 January 2026) and Veno Marioghae Mbanefo v. Airtel Network Limited² (26 January 2026). Both cases involved allegations of unauthorised use of creative works by telecommunications companies, yet they produced starkly different outcomes.

This article distils the lessons from both judgments into a practical, strategic guide for successfully establishing a copyright claim.

Summary of the Cases

In Walls and Gates Ltd & Anor v. MTN Nigeria Communications PLC, the Plaintiffs sued MTN Nigeria Communications PLC alleging that MTN unlawfully used their “20 For 20” promotional proposal in its 20th anniversary campaign. They framed their claims around copyright, confidentiality, and trademark infringement (the latter of which was ultimately abandoned).

In its decision, the Court dismissed the suit in its entirety. It held that there was no enforceable obligation of confidentiality, as the Plaintiffs had already disclosed the proposal publicly, including through submissions to the Nigerian Copyright Commission and other entities, and there was no contractual or fiduciary relationship between the parties.

On copyright, the Court delivered a decisive holding: the Plaintiffs’ proposal was merely a business idea or promotional concept, not a protectable work. Phrases such as “20 for 20” or “20 cars to be won” were deemed generic and lacking the originality or creative expression required for copyright protection. Crucially, the Court reaffirmed that copyright protects expression, not ideas, and that registration with the Nigerian Copyright Commission does not create or confer copyright, but merely evidences a claim. There was also no proof that MTN had access to or copied any protectable expression, and its campaign was found to be independently developed.

In contrast, in Veno Marioghae Mbanefo v. Airtel Network Limited, the Plaintiff, a musician, alleged that her song Nigeria Go Survive was used without authorisation in telemarketing calls and promotional campaigns. In assessing her claim, the Court found in her favour on all material issues. It held that the song qualified as a musical work protected by copyright, that the Plaintiff proved ownership through evidence of authorship, historical dissemination, and fixation (via vinyl and LP), and that Airtel’s use constituted infringement.

On infringement, the Court emphasised that once ownership is established, the Plaintiff must show that the Defendant reproduced a substantial part of the work without authorisation. This was satisfied through recorded telemarketing messages and corroborating witness testimony from subscribers who directly received the calls. The Court rejected objections on hearsay and admissibility, holding that the electronic evidence complied with statutory requirements and that direct witness testimony cured any alleged deficiencies.

Ultimately, the Court granted declaratory and injunctive reliefs and awarded ₦200 million in general damages, underscoring that damages in copyright cases flow from infringement and need not be strictly proved.

Pre-Litigation Strategy

Understanding what qualifies for copyright protection is the bedrock of any claim. Many creatives lose their cases before litigation begins due to a fundamental misunderstanding of what the law protects.

1.       The Idea–Expression Dichotomy

Section 3 of the Copyright Act 2022 makes it clear that copyright does not protect ideas, procedures, processes, or business methods, only their expression. In Oladipo Yemitan v. Daily Times & Gbenga Odusanya³ the court upheld that copyright law protects the expression of an idea (the specific words, plot, and structure of a story) and not the general idea or historical facts itself. This principle proved fatal in Walls and Gates, where the Plaintiffs sought protection for a promotional concept centred on rewarding customers during an anniversary campaign. The Court held that such a concept lacked the creative originality required to qualify as a “work”, reinforcing that copyright law does not extend to abstract ideas, no matter how commercially valuable.

2.      The Statutory Requirements of Originality and Fixation

To qualify for protection, a work must reflect sufficient skill, labour, and judgment, and must be fixed in a definite medium. In Veno, the Plaintiff satisfied both requirements by demonstrating that she composed the song in 1984 and fixed it in tangible form (vinyl and LP). The Court relied on this evidence to affirm that copyright subsists automatically upon creation, without the need for formal registration. In contrast, in Walls and Gates, the Plaintiffs failed at this threshold entirely. Their “20 for 20” proposal was characterised as a mere business concept, lacking the requisite originality and not amounting to a fixed, protectable expression. As such, there was no qualifying “work” upon which copyright could subsist.

3.      The Myth of NCC Registration

A persistent misconception among creatives is that registration with the Nigerian Copyright Commission (NCC) guarantees ownership. Walls and Gates decisively dispelled this notion. The Court held that registration does not confer copyright nor cure defects in eligibility. More significantly, the Plaintiffs’ act of submitting their proposal to the NCC and other entities contributed to the Court’s finding that the information was no longer confidential. Conversely, in Veno, the absence of formal registration was immaterial because the Plaintiff proved originality, authorship, and fixation through credible evidence. The case illustrates that registration is evidential, not constitutive.

The Fundamentals of Copyright Infringement: A Lawyer’s Lens

1.       Proving Subsistence and Ownership

The Plaintiff bears the initial burden of establishing that the work exists, is original, and that they own the copyright. In Veno, this burden was discharged through a combination of documentary and testimonial evidence: album sleeves, historical performances, and consistent attribution; demonstrating both authorship and longstanding exploitation of the work. The Court relied on the precedent set in Zain Nigeria v. TV Xtra Productions Ltd⁴ to emphasize that the plaintiff must prove sufficient effort was expended. By contrast, Walls and Gates failed at this threshold because the subject matter itself did not qualify as a protectable work.

In a situation where the plaintiff is not the author/maker of the work, it is essential to prove that ownership has been transferred to the plaintiff, because ownership is generally vested in the author of the work.⁵ Also, ownership cannot be presumed merely on the ground that you instituted the action, it must be specifically proven. This is predicated on the evidentiary principle that he who asserts/alleged must prove.⁶

2.      Establishing Copying and Evidentiary Credibility

Beyond ownership, the Plaintiff must prove that the Defendant copied a substantial part of the work. In Veno, this was achieved through electronic recordings of telemarketing calls, supported by witnesses who directly heard the infringing material. The Court clarified that such evidence, when properly certified and tendered through witnesses, satisfies statutory requirements under the Evidence Act⁷. Notably, the Court also addressed hearsay concerns, drawing a distinction between inadmissible second-hand assertions and direct sensory evidence from witnesses who actually heard the infringing broadcasts.

In contrast, Walls and Gates failed not only because there was no protectable work, but also because there was no evidence of copying or access. The Defendant’s campaign was found to be independently created, reinforcing that similarity alone is insufficient without proof of causal connection.

3.      Neutralising the “Ignorance” Defence

A common defence in infringement cases is lack of knowledge. The Court in Veno made it clear that ignorance is not a defence. Once substantial copying is established, liability attaches regardless of whether the Defendant knew the work belonged to the Plaintiff, aligning with Section 37(4) of the Copyright Act 2022.

4.      Strategy for Damages and Remedies

Once infringement is established, general damages flow naturally and need not be strictly proved. The Court in Veno reaffirmed that copyright infringement constitutes a violation of proprietary rights, for which damages are “at large.” However, claims for specific monetary relief, such as account of profits or special damages, require rigorous evidentiary support. The Plaintiff’s attempt in Veno to rely on a unilateral valuation report failed because it lacked independent verification and input from the Defendant.⁸ The Court accordingly refused the claim for account of profits, despite awarding substantial general damages.

This highlights a critical strategic point: while courts are willing to compensate for infringement, quantification of specific losses must be grounded in credible, objective evidence.

Conclusion

These two decisions offer more than judicial commentary, they define the practical evidentiary boundaries of copyright litigation in Nigeria. The contrasting outcomes underscore a fundamental truth:

• In Walls and Gates, the claim failed because there was no protectable work and no evidence of copying.
• In Veno, the claim succeeded because the Plaintiff proved originality, ownership, and substantial copying through credible evidence.

For creatives, the message is clear: the law does not protect ideas, concepts, or business strategies, it protects only their original, fixed expression.

For lawyers, these cases serve as a masterclass in litigation strategy. Success in copyright disputes is determined not by the perceived strength of a claim, but by the quality, admissibility, and coherence of the evidence presented.

In today’s intellectual property landscape, preparation, precision, and proof are not merely advantageous, they are indispensable.

Footnotes

^{1 Suit No: FHC/L/CS/1935/2021, Judgment delivered by Justice Faji of the Federal High Court}

^{2 Suit No: FHC/L/CS/1822/2022, Judgment delivered by Justice Kala of the Federal High Court}

^{3 (1980) F.H.C.R. 180}

^{4 (2021) LPELR-53534 CA}

^{5 Section 28(1) of the Copyright Act}

^{6 Section 131 of the Evidence Act}

^{7 Section 84}

^{8 The Court relied on Asikpo v. Access Bank (2015) LPELR-25845(CA) PP. 31 PARAS. C to hold that an audit or valuation report made without input from the opposing party cannot carry weight.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.