--- title: "“The Black Door” faces the music over copyright infringement" description: "A recent High Court considered a landmark music copyright infringement case involving a song which was used as title theme music." image: https://spoor.com/wp-content/uploads/2026/06/iStock-496822088-e1781526047717.jpg canonical: https://spoor.com/ja/music-copyright-infringement/ url: https://spoor.getmd.ai/ja/music-copyright-infringement/.md last_converted: 2026-08-20T10:57:05.415Z --- ```json { "@context": "https://schema.org", "@graph": [ { "@type": "Article", "@id": "https://spoor.com/music-copyright-infringement/#article", "isPartOf": { "@id": "https://spoor.com/music-copyright-infringement/" }, "author": { "name": "Jeremy De Beer", "@id": "https://spoor.com/#/schema/person/b11c40deddda3e701854b3d696699890" }, "headline": "“The Black Door” faces the music over copyright infringement", "datePublished": "2026-06-17T13:42:53+00:00", "mainEntityOfPage": { "@id": "https://spoor.com/music-copyright-infringement/" }, "wordCount": 1439, "commentCount": 0, "publisher": { "@id": "https://spoor.com/#organization" }, "image": { "@id": "https://spoor.com/music-copyright-infringement/#primaryimage" }, "thumbnailUrl": "https://spoor.com/wp-content/uploads/2026/06/iStock-496822088-e1781526047717.jpg", "keywords": [ "Copyright" ], "articleSection": [ "News Article" ], "inLanguage": "ja", "potentialAction": [ { "@type": "CommentAction", "name": "Comment", "target": [ "https://spoor.com/music-copyright-infringement/#respond" ] } ] }, { "@type": "WebPage", "@id": "https://spoor.com/music-copyright-infringement/", "url": "https://spoor.com/music-copyright-infringement/", "name": "“The Black Door” faces the music over copyright infringement - 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17 6月 2026 [著作権](https://spoor.com/ja/tag/copyright/), The Gauteng High Court in Johannesburg has recently been called upon to consider whether a copyright infringer may avoid liability for damages where the infringement resulted from a genuine mistake regarding the ownership of the copyright. This case arose from an action instituted by Mokima Music and Publishing (Pty) Ltd against Black Brain Pictures CC for the unauthorised use of the song *“Ngixoolee”* as the title theme music for Black Brain’s series *“The Black Door”*. The series, described as a *“raunchy, emotional, risqué”* production, ran for 275 episodes and aired exclusively on eTV. The song was co-authored by two artists, Hlengiwe Manyathi and Thapelo Ndou, known professionally as “Boohle” and “Busta 929” respectively. Mokima alleged that, in terms of written administration agreements with these two authors, it owned the copyright in the musical and literary works that constitute the song – alternatively, that it was the exclusive licensee of the works. This is an important detail. South African law requires that any assignment (transfer) of copyright ownership, or the granting of an exclusive licence, must be recorded in a written document signed by (or on behalf of) the assignor/licensor. The fact that Mokima held written agreements with the two authors is therefore not merely good practice – it is a legal necessity for its claims of ownership or exclusive licensee status to be valid. Mokima accordingly sought R11 million in damages from Black Brain for the music copyright infringement, alternatively, a royalty of 10% of the income which Black Brain derived from the series. ## A License in Good Faith and Section 24(2) of the Copyright Act Black Brain admitted that it had used the song but denied that Mokima was the owner of the copyright. It alleged instead that it had concluded a licence agreement with Thupa Industry (Pty) Ltd, a company owned by the song’s co-author Ndou, in terms of which Thupa had warranted that it owned the copyright in the song. In addition, Black Brain raised an alternative defence in terms of Section 24(2) of the Copyright Act 98 of 1978. This provision limits the liability for damages, even where the infringement has been established, if the infringer neither knew nor had no reasonable grounds to suspect that copyright subsisted in the infringed work. Mokima took exception to this defence, arguing that Black Brain did know that copyright subsisted in the song and was merely mistaken as to the identity of the copyright owner. The dispute therefore narrowed to a key legal question for the Court, namely whether the protection afforded by section 24(2) requires a lack of knowledge that copyright subsists in the work at all, or whether it can also extend to a lack of knowledge as to the identity of the copyright owner. ### Acting in Good Faith? In essence, Black Brain argued that it had acted in good faith throughout. It maintained that it had licensed the song from Ndou’s company which warranted that it owned the copyright and had paid a licence fee of R75 000 for its use. On this basis, Black Brain said it had no reason to suspect that any other party held rights in the song. Black Brain also pointed to the fact that Ndou had publicly celebrated the song’s use in the series in a social media post, and that Mokima only raised a copyright claim in August 2023 – well after the song had already been used in the series. Furthermore, Black Brain argued that even Mokima’s own pleadings did not allege that Black Brain knew it was infringing any copyright, or that it had acted with what is sometimes referred to as “guilty knowledge”. According to Black Brain, even if Mokima did own the copyright in the song, it should nevertheless be shielded from liability under section 24(2) of the Copyright Act, the purpose of which is to protect “innocent” infringers from liability for damages. ## The Legal Crux: Subsistence vs. Ownership The Court found that the essence of Black Brain’s defence was its belief that Ndou or Thupa owned the copyright in the song, and that it had no reason to suspect that Mokima was, in fact, the true rights holder. Crucially, however, Black Brain did not plead that it was unaware that copyright subsisted in the song at all. Mokima, therefore, excepted to this defence, arguing that the plain language of section 24(2) of the Act speaks to whether an alleged infringer knew that copyright subsisted in a work, not whether it was mistaken as to the identity of the copyright owner. The court further noted that the very warranty Black Brain relied on – namely, that Thupa had warranted its ownership of the copyright in the song – confirmed that Black Brain was aware that copyright did, in fact, subsist in the song. In other words, Black Brain had pleaded facts which demonstrated its knowledge of the existence of copyright, while simultaneously seeking refuge in a provision designed to protect those who are genuinely unaware that copyright exists at all. ***RELATED: [From Miss Marple to Rachmaninoff: A Jurisdictional Mystery](https://spoor.com/public-domain/)*** ## Direct Infringement: A Strict Liability Offence The Court drew a clear distinction between the two forms of copyright infringement recognised under the Act. Direct infringement is a strict-liability offence, it, does not require guilty knowledge, and occurs when any person, other than the copyright owner, performs – without licence – an act which the owner has the exclusive right to do or authorise. Indirect infringement, by contrast, covers infringements such as importation, sale, or distribution, and is qualified by a “guilty knowledge” requirement. Drawing on an earlier unreported judgment and comparative English law, the court held that a belief that one holds a licence, or that the copyright is owned by a particular entity, is premised on the existence of copyright. It is therefore the *opposite* of a belief that no copyright exists at all. The *“subsistence”* of copyright is a separate legal question from the *“ownership”* of that copyright: a work either has copyright protection (*subsistence*), or it does not. Determining who owns that protection is a separate enquiry. Black Brain argued that such a narrow interpretation of section 24(2) would render it effectively meaningless, confining its application only to works where copyright had expired – such as works of Mozart or Beethoven. The Court found that this was an overstatement and noted that the defence could notionally apply where a defendant reasonably (but mistakenly) believed a work to have been made by artificial intelligence or did not qualify for copyright protection in South Africa. Ultimately, the Court held that the defence is narrow by design and intended to be a carve-out in a regime of otherwise strict liability for direct copyright infringement. Black Brain further argued that its wider interpretation is consistent with the principle of acquiescence, namely, that a party which stands by and allows its rights to be infringed should not later be permitted to profit from its own inaction. The court held that while this may be a valid argument for a substantive defence of acquiescence or waiver, it was not relevant to statutory interpretation and cannot be used to rewrite the clear language of section 24(2) of the Act. The court therefore upheld Mokima’s exception and granted Black Brain leave to amend its plea to remove its reliance on section 24(2). ### Commercial Fallback That said, all may not be lost for Black Brain, who may have a separate claim against Thupa for breach of contract, given that Thupa allegedly warranted that it owned the copyright when it purported to license the copyright to Black Brain. However, had Black Brain secured an indemnity from Thupa, Mokima would have had to look to Thupa – not Black Brain – to recover its damages. In short, an indemnity shifts the financial risk of a bad licence back to the person who granted it. ## Music Copyright Infringement: The Crucial Takeaway The takeaway from this judgment is clear: guilty knowledge does not constitute an element of direct copyright infringement. A so called “innocent” infringer can still be held liable for damages, even where they mistakenly believed that they were licensed to use a copyright work. The lesson for businesses is therefore straightforward: when obtaining a copyright licence, verify that the licensor actually has the right to grant the licence, because paying the wrong person is a tune that simply won’t play in court. Failing that (and in any event), make sure your agreement includes a warranty to this effect – and an indemnity – because if you can’t avoid the wrong note, you should at least make sure someone else pays the piper.