Copyright claims over songs go to court
A MAJOR battle is raging in the high court in Johannesburg between musical Umoja and Ladysmith Black Mambazo, together with a supporting cast, to determine traditional and copyrighted songs.
The legal battle is over three songs - Nomathemba, famously sung by Ladysmith Black Mambazo under the tutelage of Joseph Shabalala, Thula Baba, copyrighted by Bertha Egnos, and Bawelile by Terry Dempsey.
These are contested as traditional songs by plaintiff Joe Theron, representing the musical Umoja: the Spirit of Togetherness.
Ladysmith Black Mambazo, Egnos and Dempsey are represented by Gallo Music publishers, S M Publishers and Angela Music Publishers, and Ian von Memerty represents himself.
Egnos, a composer, is alleged to rely on the British Imperial Copyright Act (1916), which was still in force in South Africa in 1963, when the version she copyrighted was recorded.
The Imperial Copyright Act essentially assigned the rights of the words and music to the first person to make a sound recording.
Dempsey and Von Memerty have modest claims as to administering rights and co-writing the play.
The case was launched in 2007 on an urgent basis by Theron on behalf of Umoja.
The play Umoja has always been performed under threat of litigation and with deleterious consequences to its profitability.
Theron, and his writers Thembi Nyandeni and Todd Twala, have lost out on income of more than R30-million.
Theron states that he was defamed by Gallo, or by a Belgian lawyer Alex Trappeniers - acting on instructions of Gallo overseas - who wrote to a Dutch theatre seeking to prevent the performance of Umoja.
Ironically, on the side of the battle against them is Von Memerty, one of the original co-writers of Umoja alongside Nyandeni and Twala.
Theron claims that Nomathemba , which Shabalala has hitherto known as his composition (1967), is in fact a traditional song that had been recorded in 1957.
This 1957 version of Nomathemba was recorded by Mabel Mafuya.
Egnos claims to have written Thula Baba and copyrighted it in 1963, but it is unclear if she was fluent in Nguni languages.
Earlier versions of Thula Baba, predating the one in 1963, that were recorded and in the possession of the SABC, have gone missing.