Judgement was reserved on Tuesday in an urgent High Court application by Disney Enterprises to set aside an attachment order against more than 240 of its trademarks registered in South Africa.
Lawyers acting for the family of musician Solomon Linda, the composer of Mbube, in July obtained an attachment order in the Pretoria High Court against the trademarks in order to sue the overseas company in a South African court.
The trademarks include well-known images such as Donald Duck and Mickey and Minnie Mouse.
The executors of Linda’s estate are claiming R10-million in damages against Disney Enterprises and NuMetro and R6-million against David Gresham Records.
Linda, a migrant worker, wrote the song Mbube in 1939. Since then it has been reworked and its title changed to Wimoweh in 1951/52 by Pete Seeger and into The Lion Sleeps Tonight in 1961.
It has also surfaced in Eddie Murphy’s Coming to America, sung by South Africa’s Ladysmith Black Mambazo and, more recently, in Disney’s blockbuster movie The Lion King.
Rolling Stone magazine estimated that it has been recorded at least 150 times.
Although the song has made a substantial amount over the decades, lawyers acting for the Linda family said they have only received R140 000 between 1992 and 2001 from various users.
The executor of Linda’s estate obtained an attachment order against Disney’s locally registered trademarks to enable it to sue the corporation in South Africa.
The executor claims copyright of the song had — under a 1916 law — reverted back to Linda’s estate in 1987, 25 years after he died a pauper in 1962. He left three daughters and 10 grandchildren.
Counsel for Disney, Danie Price, argued before Judge Hekkie Daniels that the executor of the estate had not been appointed properly, making everything he did on behalf of the estate null and void, including the attachment order.
It was also argued that the executor should have sued one of Disney Enterprises’ subsidiaries and that no case of copyright infringement had in any event been made out on the papers. The executor was also accused of not revealing all the relevant facts to the judge who granted the attachment order.
Disney ‘pulls all of the strings’
Counsel for the executor of Linda’s estate, Cedric Puckrin, argued that the executor had been correctly appointed and that Disney Enterprises, ”as the party which controls everything and pulls all of the strings”, was the right party to sue for damages.
It was pointed out that the attachment had been obtained in order to establish jurisdiction and that the only consequences for Disney Enterprises was that it could not sell hundreds of locally registered trademarks. The executor offered that Disney could sell its trademarks in products such as Minnie Mouse after consulting with them.
Puckrin argued that a prima facie case had been made out against Disney Enterprises and said they would like the action to proceed so that they could prove their cause of action.
Puckrin, who reminded the judge that it was ”a court of law and not Disney World”, said it would be the end of the case if the attachment order was set aside and the estate would no longer have jurisdiction to sue for damages. — Sapa