Nomcebo Zikode takes Open Mic to court after it gets 'Bayethe' taken off streaming service

Musician Nomcebo Zikode's legal battle with recording company Open Mic is not over by a long shot and has now spilt over to her recent collaboration on Bayethe. 

The singer is turning to the high court after their Grammy-nominated song Bayethe was taken down on Spotify.

The trio  — Nomcebo, Wouter Kellerman and Zakes Bantwini — received a nomination for the 2023 Grammy Awards under the category Best Global Music Performance.

Nomcebo and Open Mic have been embroiled in a legal battle since last year over the termination of her recording agreement which has spilt over to a song Nomcebo was featured in.

In her affidavit, Nomcebo alleged that on the day the Grammy nomination was announced, November 16, Spotify removed the song from its platform, as the result of a letter sent by Open Mic Productions' attorneys Mamphahlele and Masipa Inc (MM).

She denied the recording infringes on “its intellectual property in one or more musical compositions (the takedown notice)”.

“The statement is false, and the respondent knows it to be so.” 

“It holds no copyright, or other intellectual property rights, in the song or the recording. It is also not entitled to attempt to prevent me from making recordings or performing,” reads Nomcebo’s founding affidavit.

In its answering affidavit, Open Mic Productions opposed the application.

“The first and second applicant (’the applicants’) do not have locus standi to bring this application or to stay the relief sought. On their version, ‘Bayethe’ has been exclusively licensed to Universal Music (Pty) Ltd. The applicants do not purport to bring the application on Universal's behalf.”

Open Mic Production dismissed the singer's say that this would in any way affect their Grammy nomination. 

“The applicants have also failed to establish a causal link between the 'take down' notice to Spotify and how that apparently affects her Grammy nomination. The application is by its nature speculative. It is also contrived: as legal dispute does not affect the eligibility of the song for nomination in the first place.

“The first applicant remains an Open Mic recording artist. Even so, ‘Bayethe’ was recorded at a time when the first applicant’s recording contract (that is the initial period) with Open Mic was intact.”

Nomcebo took legal action to get royalties for Jerusalema and in July last year the singer released a statement saying she had been “ridiculed” for asking for her incentives.

“I have not been paid a cent by the label for Jerusalema despite the song's global success. I have been ridiculed with efforts to marginalise my contribution,” she said.

 In their affidavit the attorneys also argue that Nomcebo was still their artist at the time Bayethe was recorded 

TshisaLIVE reached out to flautist, producer and composer Wouter Kellerman as well as musician and producer Zakes Bantwini for comment.

“It is such an incredible moment for South Africa to have a song nominated for a Grammy! It is disappointing that South African music is doing its best to score an own goal in the process by taking the song down from Spotify. I would have said this would be the time to stand together to export South African music and share our music with the world! The matter is now before the courts and I trust that the music will prevail,” said Kellerman.

Bantwini had not replied at the time of publication. This article will be updated should new information become available. 

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