Mandla N’s Black Brain faces fresh setback in R11m song battle

Renowned television producer and filmmaker Mandla Ngcongwane , popularly known as Mandla N, and his production company Black Brain Pictures have suffered a fresh setback in their R11m copyright fight over the use of Ngixolele as the theme song for the television series The Black Door , after the Johannesburg high court rejected a key part of the company’s defence.

The judgment, handed down by judge Brad Wanless in June, comes as Black Brain continues to fight Mokima Music and Publishing over the song, which was used throughout all 275 episodes of the series.

Mokima claims it owns, alternatively exclusively controls, the copyright in the song through agreements with its creators, Hlengiwe Manyathi , professionally known as Boohle , and Thapelo Ndou , professionally known as Busta 929.

The company claims Black Brain used the song without its permission and is demanding R11m in damages.

The court records the dispute in stark terms: Black Brain admits using the song but disputes Mokima’s ownership, saying it had entered into an agreement with Ndou’s company, Thupa Industry, which warranted that it owned the copyright.

“Black Brain admits using the song, but denies that Mokima owned the copyright. It pleads that it concluded a licence agreement with Ndou’s company, Thupa Industry on 22 March 2022, in terms of which Thupa warranted that it owned the copyright.”

Black Brain’s version is that it did not knowingly use somebody else’s intellectual property.

Its court papers state that Ndou and Thupa represented that they held the rights, with Ndou subsequently invoicing the production company and receiving R75,000 for the deal.

Black Brain also pointed to the fact that Ndou supplied separate tracks for the song and publicly celebrated its use on The Black Door.

The company’s defence further relied on the fact that Mokima did not assert its alleged rights until August 2023.

“Mr Ndou and Thupa sent the defendant an invoice for the agreed contract amount. Mr Ndou was paid the agreed contract amount of R75,000. Mr Ndou and Thupa sent the defendant copies of the ‘separate’ tracks for the song ... Mr Ndou even celebrated the use of the song in a social media post on 25 May 2022 ...”

A belief that one has a licence, or that the copyright is owned by a particular entity, is predicated on the existence of copyright. It is the opposite of a belief that there is no copyright at all.

The court found that Black Brain’s own version of events showed that it knew copyright existed in the song. The problem, according to the judgment, was that Black Brain believed the rights belonged to Thupa or Ndou rather than Mokima.

“All of these facts point inexorably to the conclusion that Black Brain was fully aware that copyright subsisted in the song. Its defence is that it believed the copyright was owned by Thupa, not Mokima. This is a plea of mistaken identity, not a plea of ignorance as to the existence of the right itself.”