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Former sports host takes legal action against broadcaster, claiming ‘song of the year’ was his idea.
Former SABC sports commentator Owen Ndlovu has accused the public broadcaster of stealing millions from his company, Michael Owen Productions, over the past two years.
Last week, Ndlovu successfully interdicted the SABC from airing promotions related to the New Year’s Eve Song of the Year competition, claiming ownership of the copyright. And this week, Ndlovu alleged that, in 2017 and 2018, the broadcaster was in breach of contract when it ran his concept and campaign for a summer song of the year by excluding his company while the contract was still active.
This is the new information that Ndlovu’s lawyer, Bulelani Mzamo, is going to present at the Johannesburg High Court on February 10.
“The SABC not only stole my copyright, it also generated millions from listeners’ votes in 2017 and 2018, especially on Ukhozi FM. But it did not share the revenues with Michael Owen Productions, even though the contract stated that we should go 50/50 on revenue. It was greedy and selfish,” Ndlovu said.
However, SABC acting spokesperson Mmoni Seapolelo denied allegations that the public broadcaster owed Ndlovu millions.
She said one of the reasons that the SABC had not renewed Ndlovu’s contract was that it had faced challenges over its partnership with Ndlovu and, as a result, had been inundated with queries from listeners who had not received the prizes they had been promised from Michael Owen Productions.
“At this stage, the SABC is dealing with a legal matter in which one listener did not receive a car from Michael Owen Productions,” Seapolelo said, adding that the SABC was within its rights to enter into or cancel contracts with suppliers.
“As is the norm, the SABC will always ensure that all the contracts that the organisation enters into are well considered and are financially viable for the organisation,” she said.
She added that there was no summer of the year campaign in 2017 because of the challenges that were encountered the previous year.
“In 2018, the summer song of the year campaign took place, but only two SABC radio stations participated – and Michael Owen Productions benefited, as per the contract.”
Seapolelo said the organisation had been in a partnership with Ndlovu for three years, starting from October 2016.
The agreement came to an end in March last year.
“SABC radio stations have, over the years, embarked on end-of-the-year campaigns, which include a countdown to the song of the year. It is imperative to note that this initiative is not a new phenomenon; rather, it predates the SABC’s partnership with Ndlovu.”
Seapolelo added that there were no plans to reach an out-of-court settlement.
But Ndlovu remains confident that he has a strong case against the SABC.
He claims he brought elements to the summer song of the year campaign that the SABC did not have, such as listeners’ votes, offering cash prizes and bringing in sponsors.
“The SABC has been exploiting me and stealing from me and many others. This time, I had no choice but to drag it to court. I did this for every creative in the entertainment industry. We are tired of big companies taking us for a ride,” said Ndlovu.
In recent years, large corporations have been taken to task for the theft of intellectual property (IP).
However, not everyone has the means to take on industry giants, and many simply cannot afford to foot the bill, and legal jargon is often confusing and inaccessible to laypeople.
The World Intellectual Property Organisation said IP referred to creations of the mind, including inventions, literature, art, symbols, names and images used in commerce, and were protected by law.
Nothando Migogo, the director of Sosela Legal & Advisory, said: “Intellectual property is a very broad topic that includes copyrights, patents and trademarks. It is founded on the premise of novelty and proof.”
Migogo said an idea in its simplicity did not amount to IP and, as such, was not protected by law, which was why she cautioned against “speaking freely and without restraint about your ideas without any records that prove their novelty and that they do indeed belong to you; that is the date, time and place where your invention took place”.
Migogo advised people to keep detailed records either in written or recorded form, especially when pitching to large corporations.
“It’s all about the details. You need to record everything – the date, time and place when your creation was founded, and the terms discussed in your correspondence with the corporate entity,” she said.
“Don’t discuss your invention in detail during the first meeting. Provide enough information that is necessary to prevent exploitation.”
Migogo suggested drafting a non-disclosure agreement (NDA) before divulging all the details of the invention, and also going through all the terms and conditions of the contract.
She urged people to understand the terms of termination in their contracts and warned against simply using an NDA template from the internet.
“An NDA requires a certain level of diligence and understanding. If you can’t afford a lawyer, seek free legal advice on how to draft an NDA of your own. Many arts and culture organisations, including the SA Music Rights Organisation, host workshops on how to draft contracts and an NDA, and on how to protect your intellectual property,” she said.
In the unfortunate event that your IP is stolen, Migogo suggested approaching an appropriate collective management organisation to lodge a claim.
But, she cautioned, there had to be evidence to support the claim.
“The elements to prove theft of intellectual property vary depending on the type of IP in question – that is, a copyright or a patent.
“Each case presents unique circumstances, so it is not a blanket approach.
“However, the main elements you need to prove are novelty, written or recorded evidence that the concept belongs to you and any other relevant correspondence, including NDAs and contracts,” she said. – Moroetsana Serame
