Award-winning isiZulu music duo Blaq Diamond’s bid to obtain an urgent high court interdict to stop Ambitious Entertainment from removing their music video from YouTube has suffered a setback – at least for now.
This after the court last week moved their urgent application from August 15 to October 30. This effectively means the popular artists’ videos will remain unavailable on the international platform for at least two months until the matter is finalised in court. The deferment of their urgent application is contained in the court papers they filed in the Joburg high court about three weeks ago.
In the papers, which we have seen, the artists said they entered into an exclusive management agreement, publishing agreement and artist management agreement with Ambitious on January 10, 2020. But they unilaterally terminated their contracts with the record label after accusing it of breaching it when it failed to pay them royalties for their gigs. They then established their own record label “Umuthi” in about February 2022 .
Afterwards, they said, they entered into an exclusive digital agreement with a rival record label, Electromode, on July 1, 2022, under which they released three songs titled Illanga, Fireworks and Qoma, which they marketed on YouTube. In reaction, they said, Ambitious informed them of its intention to take down the songs on the platform because they breached their agreements. Blaq Diamond said on October 27 they filed an application for urgent relief against Ambitious and YouTube but this was struck off the roll for lack of urgency. The matter, they said, was then set down on the opposed motion roll and heard on March 13.
Judge Wanless AJ made an ex tempore order interdicting Ambitious and YouTube from removing or deleting the account of the singers. Ambitious, they said, was also interdicted from raising any copyright or ownership dispute against the works authored by the artists from June 15, 2022 with any other digital platforms. The platforms included YouTube, Spotify, iTunes and Deezer.
“The prohibitory interim interdict was sought by the applicants and the honourable court found that the applicants had satisfied the requirements of a prima facie right, irreparable harm, the balance of convenience, and the absence of an alternative remedy,” read the papers.
But their excitement was short lived when the record label appealed the judgment. They said on June 27 their lawyers, Friesland Hart Solomon and Nicholson, was served with application for leave to appeal by the label’s legal team. They said they later released a new music video of their ditty Impi Yothando on the platform.
On July 31, they received an email from YouTube stating their songs had been removed from their platforms after the records label issued a take-down notice against the numbers. They said this would impact on their livelihood because they make a living through music. The artists swiftly applied for an urgent interdict to stop the label from taking down their songs and wanted the matter to be heard on August 15 but, in what suggests their matter was not urgent, the court moved it to October 30. In his answering affidavit, Ambitious Entertainment boss Kgosi Mahumapelo disputed the urgency, saying it was self-created. Mahumapelo also challenged the artist’s locus standi in the matter, saying they had entered into an exclusive digital contract with Electromode, thereby ceasing their rights to the rival stable.
He also said the songs were co-authored by other artists, therefore all the songs owners were supposed to have been among the applicants in the matter. He also disputed their claim they would suffer financial loss, saying they received income from their other revenue streams except YouTube.
“The applicants do not allege any facts from which it is apparent that a huge chunk of income they make is earned from the first respondent’s (YouTube’s)channel. They do not allege the amounts from the affected songs on the first respondent’s platform,” read the papers.
He said if they suffered any harm they were at liberty to claim damages from the label. Mahumapelo said the musicians created the problem when they breached the agreement they signed with his stable. He said the sensations, which were relatively obscure, signed a record deal with his stable in 2017.
The label dedicated time, energy, resources and substantial amount of capital to initiate the group’s launch with the expectation of receiving a return on investment when they released three albums.
“The applicants, Blaq Diamond, did not fulfil their obligations to release these albums. Instead they terminated their agreements with the second respondents in an unlawful manner. Furthermore, without waiting for the court ruling confirming the valid termination of the agreement, they proceeded to enter into a new agreement with a different record label,” read the papers.
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