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 A Lion’s Trial?
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Julian Jonker This Article by Julian Jonker appeared in THIS DAY newspaper, Johannesburg on 30th July 2004 – it follows from the many views expressed about Mbube & asks the same question that we’ve been posing since 1994 – A Record Industry TRC? Is it necessary / essential? As David Marks pointed out in his article – Mickey, Donald & Goofy Under House Arrest in the Mighty Jungle – the only people making their fortunes off this tune are the Safari Suits.
Your views please!
A Lion’s Trial?
Or a Truth Commission for the South African Record Industry?

Solomon Linda 1941
Solomon Linda 1941
King Solomon’s Daughters Elizabeth, Fildah & Delphi Ntsele with Attorney Hanro Friedrich
King Solomon’s Daughters Elizabeth, Fildah & Delphi Ntsele with Attorney Hanro Friedrich
Joe Mogotsi of the Manhattan Brothers – Courtesy Lars Rasmussen
Joe Mogotsi of the Manhattan Brothers – Courtesy Lars Rasmussen
...read also >>
“No contract, no nothing, only that, you know, you are told to sign a little paper and that was called petty cash. It was written petty cash voucher.”

So says Joe Mogotsi of the Manhattan Brothers about his experience of recording for the Gallo music company. Interviewed in Francois Verster’s widely screened documentary, A Lion’s Trail (2002), Mogotsi tells us what a young, black musician might have expected from the South African recording industry a little more than 50 years ago. With no recourse to legal advice, and eager for the first signs of profit from his endeavours, he didn’t realize that the “petty cash voucher” contained a clause ceding copyright in his music, and all rights to subsequent royalties, to Gallo.

Mogotsi continues: “when you’re a young man reading this thing, it does not mean anything to you, does it? You are in fact giving your life away ... you are saying, take me to the gallows, man, hang me. That’s what you’re saying”. And that morbid pun tells how Solomon Linda died a relatively famous but poor man in 1962, having composed a song that has since grossed an estimated $15 million in royalties. After composing the hit song Mbube – later to become an international hit as Wimoweh and again as The Lion Sleeps Tonight – Linda had walked away with 10 shillings for the recording session, and a job as a packer at the company that had just ripped him off.

By now everybody knows the general facts of the case laid out by Verster’s excellent documentary (based on RIAN MALAN’S Story of Music >> & in Rolling Stone). In the 1930s the twenty-something Solomon Linda, escaping a drought-ridden KwaZulu-Natal, arrived in Johannesburg. Within two years in the city of gold he was leading a group called the Evening Birds. In 1938 they were spotted by a talent scout for the first Africa’s recording studio, and by 1939 Eric Gallo’s studio had recorded their song Mbube. Linda was already a star in the hostels, with new dance moves and sharp dress sense. Mbube was to prove a hit for years after this South African release, selling perhaps as many as 100 000 copies. Yet this was nothing compared to the fame that the song would come to attract.

Ten years after its release, the record made its way with a stack of 78s across the Atlantic to Decca Records, who decided that they were not commercially viable for release in the US. Alan Lomax, the famed folklorist, rescued the 78s from the discard bin and gave them to his friend, folk singer Pete Seeger. Listening to these sounds from a distant continent, Seeger was immediately captivated. One song in particular he copied out, “note for note” in his words. Except he couldn’t make out the lyrics. They sounded to him like ‘a-wimoweh, a-wimoweh’.

Seeger’s band The Weavers made a recording of the song, Wimoweh, which went to number 6 on the charts. In fact, it seemed that everybody who touched the song turned to gold. It certainly did wonders for the Tokens, a boy band from Brooklyn. The band wanted to cover the song, but their record label insisted that it didn’t yet have the makings of a commercial hit. So they hauled in George David Weiss, who had amongst other things co-written Elvis Presley’s Can’t Help Falling In Love With You. Weiss wrote ten words of lyrics and a new arrangement, and the song became The Lion Sleeps Tonight. It also became, to a large extent, his intellectual property.

Disney’s Lion King In the Mighty Jungle?
Disney’s Lion King In the Mighty Jungle?
Admittedly, most people will identify the song by those ten words: “In the jungle, the mighty jungle, the lion sleeps tonight.” And Weiss’ pop wizardry was such as to take what had been an improvisation, sung by Linda towards the end of the original recording, and make it into the primary melody of the song. Yet instead of Weiss taking an appropriate cut of Linda’s publishing rights for this, Solomon Linda got given the cut. Weiss and the two RCA producers he worked with made off with the lion’s share of the rights to future royalties.

One problem was that Linda had relinquished his ownership of the song when he originally recorded it. Then, when the Weavers recorded their version of the song, Gallo’s publishing execs didn’t yet have the savvy to secure a good deal, even for themselves. Instead the song’s copyright became the subject of dispute between a set of American publishers, producers and songwriters. After a protracted New York arbitration in the early 1990s, at which no South African representatives were even present, Weiss allowed The Weavers to share in some of the royalties generated by the song. A tiny amount was set aside for the Linda estate, although the motive for doing so seems dubious.

Weiss has subsequently closed himself off from all enquiries about rights and royalties. Not surprising: the song has generated enormous sums of money, especially in the past few years. The Tokens’ recording sat at number 1 in the US charts for three weeks running, and sold 6 million copies. Subsequently the song’s various versions have featured in 15 movies, has been used in numerous TV shows and TV and radio commercials, and is the musical centrepiece of one of the most successful musicals of all time. The editors of a tome called History of South African Rock claim to have compiled a list of 500 different recordings of the song.

It has been covered by artists as diverse as The Tuxedo Swingsters (which included a young Abdullah Ibrahim), Yma Sumac, Miriam Makeba, Brian Eno, Helmut Lotti and REM. It features on the CD titled “Who Let the Dogs Out”, and has been sampled by Snow (of “12 Inches of Snow” fame). There is even a version recorded by a Danish comedian as “Vimmersvej”.

Rudeboy Paul – Another version in the concrete Jungle tonight
Rudeboy Paul – Another version in the concrete Jungle tonight
Dr. Dean Owen IP Copyright expert unveils a 1911 Statute
Dr. Dean Owen IP Copyright expert unveils a 1911 Statute
 Aaron ‘Big Voice Jake Tom Haak’ Lerole watched by Bra Hugh
Aaron ‘Big Voice Jake Tom Haak’ Lerole watched by Bra Hugh
So when at the beginning of July Spoor and Fisher attorney Dr Owen Dean announced that he had lined Disney up in his sites, it caused a fuss amongst those who have been following the story. After all, when Rian Malan broke the story in the May 2000 issue of Rolling Stone magazine, it had all the ingredients necessary to capture the imagination of readers worldwide. There were mysterious flows of money, enigmatic lawyers, and a destitute African family. And most importantly, at the centre of this intrigue was a song that everybody would recognise immediately – as Malan described it, “a tune that has penetrated so deep into the human consciousness over so many generations that one can truly say, here is a song the whole world knows.”

The only thing the story lacked was a happy ending. Two years after Malan’s story came out, one of Linda’s daughters lost a battle against HIV/AIDS, because she couldn’t afford the drugs which could keep her alive. Her sisters continue to find work as domestic servants. Even though money began to trickle in during the 90s, the family’s lawyer estimates that the estate has received less than 1% of the songs earnings during this period.

And now Dr Dean, the man who literally wrote the textbook on the South African law of copyright, is trying to win back some of those vast sums of money, in the fight for the lion’s fair share. His innovative strategy invokes a 1911 copyright statute to claim that Linda’s copyright reverted to him 25 years after his death, even though he had ceded it at the time of recording. Theoretically, then, all uses of Mbube (as well as The Lion Sleeps Tonight) after 1987 should have only been made with the permission of Linda’s estate. Dean’s work made headlines this month when he successfully won an order authorising the attachment of 200 of the Disney company’s trademarks in South Africa. This will giving the Linda family the right to command the South African revenue streams of such characters as Mickey Mouse and Donald Duck, should they succeed in their case. The parties will square up in court in early August, unless they enter into negotiations of some sort.

But some people remain sceptical about these developments. Why? They point to Gallo as being the cause of Linda’s initial dispossession, and therefore responsible for his losing out on the big cash which followed. The law may favour them, but morally Gallo is seen to be obliged to make reparations. One such critic is 3rd Ear Music’s David Marks, who has asked whether recent events were “another expensive law-suit diversion... The local record industry escapes once again through smoke & mirrors?” And it doesn’t stop with Mbube. In the early 1970s a headline article in the Sunday Tribune enquired into the whereabouts of the millions made by the music of Aron ‘Big Voice’ Jack Lerole, also signed to Gallo. There are also the stories told by musicians such as Mogotsi. Perhaps, some have been muttering, we need a truth commission in our own country before we launch any more lawsuits against Disney.

Rob Allingham, archivist for the Gallo since the 80s, is passionate about this particular topic. “Horseshit,” he says when asked whether there should be an enquiry into the moral blameworthiness of the recording industry’s practices during apartheid. “Absolute horseshit. It’s got nothing to do with race and everything to do with the rules of the game at the time.” Allingham points out that not only was it standard practice for record companies to take cession of an artist’s rights without any agreement to pay royalties, but that this practice applied equally to both black and white musicians. The first artist to negotiate a royalty deal was Nico Carstens, in the early 50s, and the rules of the game began to change accordingly. The industry’s policy at the time survives international comparison: the much older recording industries in the US only began paying royalties after significant collective action in the mid-40s, and buyouts were still prevalent in the UK in the late 50s.

Meanwhile, it is perhaps the standard practice of musicians to claim victimhood. Joe Mogotsi, who claims to have signed his way to the gallows as a young man, reportedly drew a royalty cheque from Gallo all the time he was in self-imposed exile in London. Allingham refers to a 1956 Drum article in which the Manhattan Brothers boasted of earning 400-500 pounds in their latest deal, an enviable sum at the time. Jack Lerole’s Tom Hark was a hit in the UK, and Lerole complained most bitterly of being fleeced of its royalties. Yet sources indicate that it may not have been written by him at all.

Of course none of the doubts raised by stories such as these preclude there having been actual instances of victimisation. Nor does it obviate the need to understand the day-to-day difficulties a black musician might have faced in the totalising experience of apartheid. Some music industry veterans claim that black artists were subject to outright buyouts of their songs up into the 80s. Obstacles such as access to legal advice and the language used in contracts should also be taken into account.

Amidst these debates about the role of the local industry, Disney seems to be a good target. The song’s largest revenue streams have probably been generated by the Lion King movie and musical. The guesstimates bandied about in Spoor & Fisher press releases pay testament to this. Going by current New York rates, the musical alone has generated an estimated $5 million in royalties for the song.

Why would Dr Dean’s law firm fire off a salvo of press releases about the impending suit against Disney, when strategic sense suggests that doing so would play out his hand if he wanted to negotiate a favourable settlement? One theory is that the multi-billion dollar entertainment giant will find the hype in this case irksome enough to start questioning its relationship with George David Weiss’ publishing company, Abilene Music. All attempts by South Africans to smoke him out have been unsuccessful: perhaps the lion king of entertainment biz will succeed where they have failed.

Meanwhile, with a dearth of documentary evidence and some of the most outspoken music industry experts unwilling to go on record, the history of the local industry remains inscrutable.

Julian Jonker
Cape Town, 01 August 2004

Cape Town, 01 August 2004
Courtesy THIS DAY & Julian Jonker


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