the lion sleeps tonight and british empire and imperial copyright act and owen dean and south africa

CNN reported last evening that the three surviving daughters of a South African man, Solomon Linda, who composed the music and words to the song now popularly known as "The Lion Sleeps Tonight" in Zulu in 1939, have settled with New York-based Abilene Music to turn over 25% of "past and future" royalties on sales of this song to the daughters. This essay will review a few of the important facts from this six-year litigation, but will do so from the perspective of a larger cultural issue facing the West today--and that is the repatriation from the West of cultural artifacts emerging in other parts of the world.

Setting the Context

Anyone from the baby-boom generation remembers growing up to the hauntingly beautiful sound of "The Lion Sleeps Tonight," sung by the Tokens, a Brooklyn-based singing group (led by Neil Sedaka, who didn't contribute to this song, however) in 1961. In fact, as is now well-known, this tune was originally composed by Soweto-resident Solomon Linda in 1939, supposedly in a few minutes, as he reminisced on his childhood days chasing lions away from the sheep he was watching. The tune was introduced to Pete Seeger and the Weavers, who put out a disc entitled "Wimoweh" in 1952, which launched the American run of the song. It "took off," as one web site has it, after the Weavers performed the tune in Carnegie Hall in 1957. Then the Kingston Trio, arguably one of the most popular groups in America in the late 1950s, put out their version of Wimoweh on a 1959 album. Some attribution to Linda, who had sold his rights to the tune by assignment to an Italian publisher, Gallo Records, for a few dollars, appeared on the Kingston Trio label (it says "traditional; adapted and arranged by Campbell-Linda." Campbell was the pseudonym for the Weavers, according to this web site.). By the time the Tokens recorded "The Lion Sleeps Tonight" all reference to Linda had disappeared. Solomon Linda then died intestate in 1962, with a meager estate that quickly evaporated when divided among his four daughters. Case closed, or so it appeared.

Enter Owen Dean

I don't know the particulars of Owen Dean's initial involvement with the Linda family and the copyright/royalty issues in this case. One site has it that Gallo, filled with guilt at the way that the Linda daughters were living out their days in poverty (one of them even died of AIDS during the pendency of the litigation without access to life-extending drugs), decided to contact Dean about the case. Dean then brought on behalf of the executor of Linda's estate "a claim of copyright infringement based on the reversionary interest in the musical work entitled "Mbube" from which the well known hit song "The Lion Sleeps Tonight", has allegedly being derived." What Dean knew, however, is that the Imperial Copyright Act of 1911 applied to his case.

Section 5(2) of that Act, which was preserved in its substance through the South African Copyright Acts of 1965 and 1978, provided that where the author of a work was the first owner of the copyright and the copyright was assigned (which fits the facts of our case), no assignment made during the currency of the Act would be operative to vest in the assignee (Gallo Records) any rights under the copyright in the work beyond a period of 25 years after the death of the author, and that, at the expiration of the 25 year period, the copyright in the work for a further 25 years would revert to the author's legal personal representative or executor as part of the estate. You do the math. This would mean that under the Imperial Copyright Act of 1911, which applied to Linda's assignment to Gallo, the family would have no royalties for the period from 1962-1987 (the 25 years after Linda's death), but that any royalties secured during the next 25 years (1987-2012) would go to the estate and be divided, in this case, according to the laws governing intestate succession.

We are in that 25-year period where royalties should go to the estate of Solomon Linda. And, let me ask the question. Has there been any use that you can think of in the past decade or so of "The Lion Sings Tonight?" Try Disney. The Lion King. Super big bucks.

So, one of the first things that Dean was able to do, in 2004, was to "freeze" Disney's South African copyrights (the technical legal term is "attach") to other Disney figures, such as Mickey Mouse and Donald Duck. This didn't mean that the company didn't earn money from these copyrights; it simply meant that the court froze those assets until such time as the case concerning the Linda sisters would be resolved. Certainly such an act would catch Disney's attention. Disney's copyrights are among the most valuable in the world, with one estimate of their worth that I saw being about $33 billion.

But the settlement announced yesterday was not with Disney; it was with Abilene, to whom Linda's widow also assigned whatever interest she had in the original song in the early 1970s. Details on the precise nature of this assignment are sketchy to me.

Implications

Nevertheless, the implications of this case not only for other possible "borrowings" of traditional music are potentially immense. Since the British Empire controlled more than 1/4 of the globe in the early 20th century, when the Copyright Act was passed, it stands to reason that a good number of other cases might arise under the same Act in the future.

But the case interests me for one other reason. Ever since the liberation movements of the 1950s led to widespread independence of nations in the 1960s, there has been a debate about the full scope of the meaning of independence. Post-colonial literature and philosophy deals with the voices of the people long suppressed under colonial regimes. One of the issues arising in the wake of the "post-colonial" world is the question of ownership of the world's cultural artifacts. As we know, much was "looted" by the West, commencing with Napolean's wars in Egypt in the late 1790s. Should the cultural possessions looted, borrowed, or "assigned," to use the legal term, be "reassigned," repatriated or kept in the West? The debate will rage on, with hurt feelings on all sides, no doubt. But the issue now is front and center to a larger segment of educated readers. We can thank the Linda family for bringing it to our consciousness through this lawsuit. The Lion Sings Today.

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