Disney Enterprises has lost its bid to set aside an attachment order against its South African-registered trademarks, enabling the family of musician Solomon Linda to sue Disney for royalties in a South African court.
Pretoria High Court Judge Hekkie Daniels on Tuesday dismissed Disney’s application against the executors of Linda’s estate, which represents the musician’s three daughters.
The executors obtained an attachment order in July against the more than 240 locally registered Disney trademarks, including well-known marks such as Mickey Mouse, Donald Duck and Disney.
Disney claimed SG Griesel, who instituted the damages claim on behalf of the estate, had not been appointed properly as executor by the Master of the High Court and did not have authority to represent the estate of the late Linda.
The estate is claiming R16-million in damages from Disney Enterprises, NuMetro and David Gresham Records for infringement of the copyright to the song Mbube — on which the well-known The Lion Sleeps Tonight, which was used in the Disney movie The Lion King, is based.
The estate claims copyright to the song had reverted to the estate in 1987, 25 years after Linda’s death.
But Daniels said if one views the matter, the fact remains that Griesel purported to act on behalf of the estate.
The Master of the High Court or magistrate regards Griesel as the duly appointed representative of the estate and will look to him for reporting on the estate and to account for the assets recovered.
It is true that he was not named ”executor” of the estate, but this does not detract from the fact that he was appointed to represent the estate. Whether Griesel is called an agent or executor cannot impact on his entitlement to institute the action, the judge said.
On Disney’s claim that the estate had not made out any case against it because it was never a producer or distributor of the film The Lion King, Daniels pointed out that both the actual perpetrator and the person who instigated or instructed the doing of that act could infringe copyright.
He said the estate at this stage does not have evidence directly linking Disney Enterprises to the alleged infringement of the copyright by its subsidiary in South Africa. But these are early days and he is satisfied that at least a prima facie case has been made out.
He said Griesel’s failure to disclose alleged material facts, including the assignment of copyright in the song by the late Regina Ntsele (Linda’s wife) and daughters in 1983 and 1992, would have had little effect upon the decision of the judge who granted the attachment order.
Linda, a migrant worker, wrote the song Mbube — which means ”lion” in Zulu — in 1939. The song has since then been reworked and its title changed to Wimoweh in 1951/52 by Pete Seeger and into The Lion Sleeps Tonight in 1961.
It has featured in the Eddie Murphy movie Coming to America, sung by South Africa’s Ladysmith Black Mambazo, and in Disney’s blockbuster The Lion King.
Rolling Stone magazine estimated that it has been recorded at least 150 times.
Although the song has made a substantial amount in royalties over the decades, lawyers acting for the Linda family said they have only received R140 000 between 1992 and 2001 from various users.
Linda died penniless 1962, leaving three daughters and 10 grandchildren. — Sapa