Internationally renowned musician Nomcebo Zikode's fight against record label Open Mic Productions has become messier.
In court documents which IOL Entertainment has seen, the singer is turning to the High Court after her Grammy-nominated song “Bayethe” was unlawfully taken down on Spotify.
Zikode and her collaborators Zakes Bantwini and Wouter Kellerman received the nomination for the 2023 Grammy Awards under the category Best Global Music Performance.
In her founding affidavit, Zikode alleges that on the day the Grammy nomination was announced, November 16, 2022, Spotify removed the song from its platform, as the result of a letter sent by Open Mic Productions attorneys Mamphahlele and Masipa Inc (MM).
“This was a result of the respondent, through its attorneys MM, writing to Spotify (on a date which remains unknown to me) that the recording infringes on ‘its intellectual property in one or more musical compositions’ (the takedown notice).”
Zikode claims in her founding statement that “the statement is false, and the respondent knows it to be so”. According to her founding affidavit Zikode is a joint author of the song, along with Wouter and Bantwini.
“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 Zikode’s founding affidavit.
Zikode in her founding affidavit is seeking on an urgent basis that Open Mic Productions be interdicted from representing that it owns the copyright to the song or recording, or stating that she is not permitted to recording any perform, any music without their permission.
“... is ordered to advise Spotify with a copy to the applicants, to reinstate the recording on the basis of the outcome of the interim relief.”
Zikode and Open Mic are currently embroiled in a legal battle over the termination of her artist recording agreement with the record label.
In their answering affidavit, Open Mic Productions through their attorneys Mphahlele and Masipa opposed the application.
“The first and second applicant (’the applicants’) do not have locus standi to bring this application or to claim 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 Zikode's claim that there is “causal link between the ‘take down’ notice” to Spotify and how that apparently affects her Grammy nomination. The application is by its nature speculative.
The recording label further claims that Zikode is still their artist as the recording and artist’s management agreement is extant.
“The first applicant remains an Open Mic recording artist. Even so, ‘Bayethe’ was recorded at a time when the first applicant’s recording contract (i.e. the initial period) with Open Mic was intact.”
Zikode’s legal battle has been ongoing and stems from her not being rightfully acknowledged as the writer of “Jerusalema”.
In July last year, Zikode issued a statement alleging she had not been paid the royalties due to her for her work on the song.