The Settlement of the Mbube or “Wimoweh” case in South Africa of the claims by Solomon Linda’s family to copyright over the song used on the Lion King Soundtrack cut short an opportunity to debate in court a core issue at the heart of traditional knowledge. Obscured by the injustice of Linda’s family being deprived of the income generated by the song and its taking by the writers of the song ‘Wimoweh”, and the producers of “the Lion King” movie, the key issue of whether Solomon Linda had any right in the first place to the song was not properly litigated. This hidden aspect of the case, of how it addressed the issue of entry and exit rules for members of traditional communities that hold traditional knowledge and folklore is crucial. Was Solomon Linda a pirate? In claiming copyright over a traditional melody, adapting the words and distributing the song, was he in line with his obligations within the traditional community? Did he violate the norms of his traditional community by doing so? What lessons does that provide for the future of members of traditional communities participating in cosmopolitan, metropolitan culture while maintaining their sense of identity?
The article I am currently writing tries to outline the boundaries of this question and tries to get to the heart of the story of the relationship between the traditional forms of music that Linda drew on and the song Mbube.
The Lion King, an animated film from the Disney Corporation contains a song called “The Lion Sleeps Tonight” familiar to many camp outs, scout troops, and at least one, non-parentally approved teenage party. That song, first popularized in the 1960s by the Tokens, was based on a 1950’s Pete Seeger composition[1] and sound recording[2] called Wimoweh, his transposition and translation of a song called Mbube, from a record of South African popular music that had been sent by Gallo records to its partner company in the US, Decca records.[3] That song was first composed and recorded in Gallo records’ studio in 1939 by Solomon Linda, who died penniless, his family living in poverty, while millions were made on songs derived from his composition. The US copyright, through a series of assignments, and licenses ended up in the hands of a US based folk music publisher called Abilene records.[4] An article by Rian Malan, in Rolling Stone in 2000 resurrected the story of Linda.[5] In it, Malan, made clear that this was a story of misappropriation and injustice committed against a poor artist that deprived him and his family of their rightful compensation and credit. The story led Gallo records to retain the services of Owen Dean, an influential intellectual property lawyer in South Africa to represent the interests of the Linda family and try to claim some recompense for them.[6] Disney was involved as a licensee in South Africa and was brought into the case because its other intellectual property was under threat of ‘attachment’.[7] After initial legal maneuvering, including several filings, the case was settled in 2006.[8] In that settlement, Disney and Abilene records publicly acknowledged that “The Lion Sleeps Tonight” was derived from “Mbube”.[9] Solon Linda was recognized and listed as a composer of “The Lion Sleeps Tonight”.[10]
However, there are varying strains of the origin of the song Mbube, from musicology and other sources that complicate this story in ways that may question the claims, normative and legal, that Linda could make on the song.
I do not challenge the arc of that narrative of injustice against Solomon Linda and his family. I do however want to raise an issue that the settlement of this case allowed to be elided. Did Solomon Linda (along with Gallo records) himself have a right to the song in the first place? Was it truly an original piece or was it a copy or derivative of a traditional song that was sung in his home village in the rural areas? If so, copyright law at the time would have made the song unoriginal and Linda and Gallo records would not have been allowed to claim copyright over it. That they nevertheless did raises the specter that I am concerned with in this piece: was the original act of recording the song an act of cultural piracy that misappropriated traditional knowledge? That would complicate the normative justice claims of Linda’s story and implicate a key issue that bedevils systems of traditional knowledge protection that are being proposed and implemented across the world. How should we manage entry rules into communities for use of traditional knowledge and, for members of these communities, how should we manage exit rules i.e. under what circumstances can and should they be able to take the knowledge and culture of the community and privatize this for themselves?
Had the case gone further in South African Courts, there was a clear defense that would have been available to Disney/Abilene records in the case. A classic response would be to challenge Linda’s authorship of the song in the first place. If Disney could prove that Linda did NOT originate the song because what he did was in the public domain (in this case, a traditional song), then they would owe him or his family nothing. Additionally, they could argue that even if they took something, what they took was not a substantial part of what was original but the material that was in the public domain i.e. that haunting melody, the falsetto overlay. In fact, this is exactly what Disney did, and Dean acknowledges that this was a real threat to the success of any legal action to claim damages under copyright.[11]
Of course, this would not truly address the harm that was a large part of the case made in support of Linda: the authenticity of the song’s link to Zulu tradition and a kind of cultural misappropriation. In fact, one way to prevent Disney from succeeding in its defense would be to make such a defense unavailable in the context of traditional knowledge i.e. Disney could not claim that the song was in the public domain because it was protected by the rights of the traditional community, of which Linda was a part. However, for Linda to succeed in such a hypothetical scenario, he would have had to have been in compliance with the rules and traditions for someone in the community to take community knowledge and exploit it for their own individual benefit. And we cannot be confident that he was. Hence the question: was Solomon Linda a cultural pirate, or was he acting within the traditions and rules of his traditional community? The lack of resolution from the settlement raises two key issues. Was Solomon Linda’s composition actually and truly original in the copyright sense? Even if it was, does it nevertheless represent a case of appropriation of traditional knowledge i.e. ostensibly a derivation of traditional knowledge? If it was such an appropriation, did he do so under the rules proper to his community or did he and Gallo records engage in an act of misappropriation of that traditional knowledge?
Recommended Citation: Dalindyebo Shabalala, “Solomon Linda, Cultural Pirate?”, IP& (Aug 1, 2019)
[1] What is a composition in copyright terms?
[2] What is a sound recording in copyright terms?
[3] Owen Dean, Awakening the Lion in the Jungle – The story of the Lion Sleeps Tonight Case, Spoor&Fisher:Latest News (2019), https://www.spoor.co.za/en/News/awakening-the-lion-in-the-jungle/ (last visited Jun 27, 2019).
[4] For simplicity’s sake, I am not going to detail the different types of rights at stake here, such as publishing rights, rights to the sound recording, performers rights etc. Copyright can be thought of as a bundle of sticks composing several different rights e.g. the reproduction right, the right to make derivative works, to right to perform the work, the right to distribute copies of the work. In music copyright there are other rights that can accrue such as sound recording rights. For the purposes of this article, we are going to be focused on the basic original recording that happened in the studio: the publishing/composer right and the sound recording right. Solomon Linda claims the publisher/composer right as the creator of the song and Gallo records claims the sound recording right as the person responsible for fixing the performance done in the studio. (I may need to explain this further)
[5] Rian Malan, In the Jungle: Inside the Long, Hidden Genealogy of ‘The Lion Sleeps Tonight,’ Rolling Stone, 2000, https://www.rollingstone.com/music/music-features/in-the-jungle-inside-the-long-hidden-genealogy-of-the-lion-sleeps-tonight-108274/.
[6] Dean, supra note 3.
[7] Id.
[8] Id. The settlement has a complicated afterlife that Dean elaborates on in the article, primarily around the conduct of the trust and the amounts actually received in royalties. The claim was based on an obscure element of British colonial and the South African copyright that reverted copyright assignments to the executor of the estate of the deceased person, 25 years after their death. This applied not just in South Africa but in the United Kingdom and all former British colonial possessions based on the British Copyright Act of 1911..
[9] Id.
[10] Id.
[11] Id.
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