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 ...”

But the latest judgment has now taken aim at that explanation.

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.”

The finding strikes at one of Black Brain’s arguments for avoiding damages if Mokima ultimately succeeds in proving its copyright claim.

The judge said a belief that someone else owns copyright is fundamentally different from believing that no copyright exists.

“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 was also unimpressed by the argument that the matter should simply be left for trial.

Black Brain had argued that the issue would be better decided after all the evidence had been heard.

The judge disagreed, finding that the particular issue before the court could be decided from the pleadings and the law.

The judgment states that Black Brain’s own pleadings contained facts which demonstrated its awareness that copyright existed.

“The warranty from Thupa, the invoicing and the public celebration of the song’s use, are facts pleaded by Black Brain itself which demonstrate its awareness of the subsistence of copyright. No evidence can transform this pleaded awareness into ignorance,” read the document.

The money at stake is substantial.

Mokima says the song was used as the titular theme in each of the 275 episodes of The Black Door, which began airing in April 2022. It says it would have charged R40,000 for each episode had Black Brain approached it for a licence. That calculation brings the claim to R11m.

Black Brain, however, has previously highlighted the very different figure it paid for the use of the song.

Its court papers say the company negotiated an arms-length, one-off payment of R75,000 with Ndou for use of the song in the opening title sequence of all the episodes.

It also complained that Mokima waited until after the entire series had been broadcast before asserting its claim.

The company’s papers state that the first demand it received was on August 22 2023, roughly 16 months after the first episode aired.

That delay remains part of the wider dispute, though the latest judgment did not finally decide the underlying R11m claim.

Instead, the immediate consequence for Black Brain is that it must amend its plea.

The court upheld Mokima’s challenge to the defence and gave Black Brain 15 days to amend it. If it fails to do so, the disputed defence will be deemed struck out.

Black Brain was also ordered to pay Mokima’s costs, including counsel’s costs.

For Mandla N’s Black Brain, the ruling represents a significant development in a dispute that started with a song licence worth R75,000 but has escalated into an R11m copyright claim.

Ngcongwane is behind some of South Africa’s acclaimed television productions. His portfolio includes the gritty prison drama Lockdown, which became a popular Mzansi Magic series, and the telenovela DiepCity, which followed four young women drawn into crime as they struggled to survive in Diepsloot. DiepCity went on to win eight SAFTAs in 2022, including Most Popular TV Soap/Telenovela and Best Achievement in Directing.