Hunt for Fassie 'millions'

2007-11-25 16:26

Lumka Oliphant

Johannesburg - Not even death, it seems, can keep Brenda Fassie's fighting spirit down.

The late diva is about to shake the South African music industry to its core.

In the first case of its kind in this country and one of the few in the world, David Feldman, the executor of Fassie's estate, has taken EMI Music and EMI Publishing to court, ordering the multinational recording company to open their books - here and abroad - and reveal details of Fassie's account.

Last week the two battled it out in a case that left Judge Mahomed Jajbhay "overwhelmed".

Feldman said EMI music and EMI Publishing "from, and subsequent to, 1993 until the present time reproduced the works, published the works, made an adaptation of the works, purported to grant licences to third parties to reproduce, publish and make adaptations of the works without a licence".

In this regard, Feldman wants the court to order and direct an inquiry in respect of Fassie's royalties.

In papers before the court, Feldman is disputing some of the monies paid to Fassie by the company and claims that, during the period 1993 to 2003, Fassie may have been underpaid by up to R3.5m.

"During the said years that the account refers to, nine solo albums were released which generated almost two million units of sale.

"If one was to add in catalogue sales, the unit number of sales would be well in excess of two million.

"The total artist royalty during the period would have been in excess of R10.2 million. The deceased was therefore underpaid in excess of R3.5m," read the court papers.

Feldman further alleged that the accounts failed to report or deal with any income derived from the following sources:

Video usage by broadcasters after 1997 (especially monies received from the Recording Industry of South Africa and Video Producer Licences)

Foreign sales (especially those between companies in the EMI group of companies and licencees)

MP3 and other digital formats and

Synchronisation licensing

"In the premises the plaintiff submits it is entitled to a full and proper accounting for the period November 1993 to date," read the papers.

But EMI Music and EMI Publishing refused to open their books and denied any wrongdoing on their part.

They approached the court in a bid to have the case thrown out of court because the "plaintiff's claims are vague and embarrassing".

They are challenging Feldman's move to sue them as Fassie had co-authored some of her works.

Quoting the Copyright Act, David Liebowitz, acting on behalf of EMI Music and EMI Publishing, said Feldman could not sue them on his own.

"Where there is joint ownership of a particular work, they are obliged to act jointly," said Liebowitz.

The court action is likely to have far-reaching effects for the local music industry, in which musicians have traditionally been at the mercy of recording companies.

Judge Jajbhay said he could not decide on the matter soon and needed to apply his mind constructively.

"This matter needs to be seriously considered . . . It is definitely not easy as there is no case precedence within the music industry, hence I asked if this case had any implications for the industry," said Jajbhay.

He said he could even imagine Fassie's spirit singing Abantu bayakhuluma (people are talking), one of Fassie's songs, but the sad part is that "I need to solve it".

The judge asked both parties to send him their arguments by this week as he hoped to make a judgment before the court went into recess.

EMI South Africa managing director Irving Schlosberg said they were part of a major international company and their royalty accounting is thus of "the highest possible standards".

"Our royalties are also subject to audit by both EMI International's internal auditors as well as local statutory auditors," he said.

"EMI South Africa has accounted and made substantial payments to the executor of the Fassie estate in respect of royalty earnings and continues to do so.

"We were thus taken aback when the summons was issued as we do not believe that there was any substance to the claim. Given this we have launched proceedings, called exception proceedings, challenging the summons."

Fassie family spokesperson, Skhumbuzo Fassie, said they were happy the case had finally gone to court and he could not comment further.

- City Press