- The amapiano song Ngixoolee by Boohle and Busta 929 was used in 275 episodes of The Black Door without consent from the claimed rights holder.
- The court finds that relying on a licence from another party does not excuse use without proper authority.
- Defence based on lack of knowledge was rejected and declared legally defective.
A television production company used a song created by two prominent South African artists as the defining sound of an entire series; however, the High Court in Johannesburg has made it clear that permission must come from the rightful source.
Mokima Music and Publishing (Pty) Ltd brought the case against Black Brain Pictures CC, alleging that the amapiano song Ngixoolee, created by Hlengiwe Manyathi, known as Boohle and Thapelo Ndou, known as Busta 929, was used as the theme music for all 275 episodes of The Black Door without its consent.
Mokima says it holds the copyright through administration agreements with the artists and is claiming R11 million in damages based on the value of that use.
Black Brain does not deny using the song. Its case is that it obtained permission from Thupa Industry Pty Ltd, a company linked to Ndou, and believed that this gave it the right to use the track across the series.
Parties and competing claims
At the centre of the dispute are competing claims about who had the authority to license the song. Mokima says it holds the copyright through agreements concluded with the artists in May 2021. Black Brain, on the other hand, says it relied on a licence agreement concluded in March 2022 with Thupa, which warranted that it owned the copyright in the song.
This conflict reflects a deeper tension in the music industry, where artists, publishers, and companies may all be involved in managing rights, but only one party ultimately holds the legal authority to approve use.
The legal issue before the court
The matter came before the court as an exception, meaning the court was not deciding whether copyright infringement had been finally proven, but whether Black Brain’s legal defence could stand as pleaded.
Black Brain relied on Section 24(2) of the Copyright Act, arguing that even if infringement were proven, it should not be liable for damages because it did not know that Mokima held the copyright.
Judge BC Wanless said, “The crisp issue for determination is one of statutory interpretation. Does the protection afforded by section 24(2) of the Act require a lack of knowledge that copyright subsists in the work at all, or does it extend to a lack of knowledge as to the identity of the copyright owner?”
The distinction was critical. Black Brain’s defence was built on not knowing who owned the copyright, not on denying that copyright existed at all.
Why the defence failed
The court found that Section 24(2) is narrow and only applies where a defendant did not know that copyright existed in the work. It does not apply where a defendant knew the work was protected but was mistaken about who owned it.
Judge Wanless stated, “The plain wording of the section is clear. It creates a narrow exception to the general rule of strict liability, and it does so only in respect of a defendant’s awareness of the subsistence of copyright. It says nothing about knowledge of the owner’s identity.”
Black Brain’s own version showed that it knew the song was protected. It entered into a licence agreement, received a warranty about copyright, paid for the use of the song, and used it consistently across a major production.
Judge Wanless said, “The defence is premised on the allegation that Black Brain was not aware, and had no reasonable grounds for suspecting, that Mokima was the owner or holder of the copyright. That is not what the section requires.”
He added, “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.”
What this means for artists and the industry
The judgment highlights a real risk for artists like Boohle and Busta 929, whose work can be widely used in commercial productions while disputes arise over who controls the rights. A song that began as a creative work became the identity of a 275-episode television series, raising questions about who benefits from that success.
The order of the court
The court upheld Mokima’s exception and found that Black Brain’s defence, as pleaded, is legally defective. Judge Wanless stated, “This court finds that the alternative defence as pleaded in paragraph 4 of Black Brain’s Plea is bad in law. It lacks the necessary averments to sustain a defence under Section 24(2) of the Act.”
Black Brain has been granted 15 days to amend its plea. If it fails to do so, the defence will be struck out. The court also ordered Black Brain to pay the costs of the exception on the party and party scale.
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