Awakening the Lion
the Case of The Lion Sleeps Tonight
By Owen Dean
Discovering the lion
There was nothing about 2 September 2002 that outwardly suggested it was going to be anything but a conventional day in my life. It was a normal spring day in Pretoria, bright and sunny, without being too hot. The trees in the city were already heralding the approach of spring and there were signs of their boughs budding with green.
I was an attorney and partner at Spoor & Fisher, one of the leading specialist intellectual property law firms in the country. This field of law comprises patents, trademarks, copyright and designs. I had been specialising in trademark and copyright law for the past 28 years and become known as ‘Mr Copyright’.
I was sitting in my office waiting for a client named Geoff Paynter of Gallo Africa, one of the principal music companies in South Africa. It was part of a group of companies that also comprised Nu Metro Films and various other entities in the entertainment industry. Geoff Paynter was the person at Gallo who was primarily involved in copyright matters, especially the commercial exploitation of music, as distinct from recorded music. Gallo was a major client of mine and I had acted for them in several matters, including in connection with music rights, sound recordings and the distribution of movies in the home entertainment market.
I hadn’t been told what Geoff wanted to talk to me about, but I had an inkling; I had half been expecting him to see me about it for some time. This went back to a consultation I had had with him some two years earlier, in June 2000, when he had raised a very interesting matter and sought a formal opinion from me on behalf of his company.
It related to the rights in a song called Mbube, which had evolved over a period of several years into an international hit called The Lion Sleeps Tonight and become one of the most successful pop songs ever written and performed. After several visits to the international hit parade in various guises, it had been taken up into the world famous musical production The Lion King, which had enjoyed long and successful runs on Broadway, London’s West End and other parts of the world. The stage show, the animated movie version of its story and its music had been produced by Walt Disney of the United States.
Two years before, Geoff had brought me a suitcase full of documents that represented everything Gallo had on file about the song Mbube. He had also handed me a copy of an article entitled ‘In The Jungle’ by Rian Malan, an investigative journalist and writer who had made a name for himself by writing controversial articles, often of a political nature. The article, published in the US magazine Rolling Stone of 25 May 2000, related the sad tale of the composer of Mbube, Solomon Linda (also known as Ntsele), and his family.
The main thrust of Malan’s article was that although Solomon Linda had written Mbube, which had gone on to achieve great things and generate bounteous riches, none of these riches had accrued to the composer or his family, who all lived a life of poverty. The article sketched how the song had developed as a commercial property and how it had been the subject of commercial and legal wrangles between various other parties. But all of this had passed Solomon Linda and his family by; he had simply passed into oblivion.
The article said it was grossly unfair that the original composer of the song and his family should have lived such impoverished lives while the song was a passport to riches for others, mainly the moguls of the music industry in the United States. The plight of the composer and his family was attributed at least in part to the Apartheid system and the second-class status suffered by black people in South Africa at the time.
Gallo, the initial usurper of the song from Solomon Linda, had given it a start along its successful road and participated in the benefits. In fact, Gallo was cast somewhat in the role of villain in what had befallen Solomon Linda and his family. And it wasn’t enjoying being portrayed in this light, particularly in the ‘new’ South Africa where it had become part of a corporate group with a strong black empowerment orientation. The purpose of that earlier visit of Geoff’s had been to commission me to investigate the legal situation surrounding the rights to the song, and to find out whether anything could be done to reinstate the claim of the Linda family to the song and improve their material lot.
In short, Gallo was politically embarrassed by the position Rian Malan’s article had highlighted, and wanted me to find some way for it to redeem itself, particularly in the eyes of the public.
I had undertaken the task of ploughing through myriad documents, mostly contracts entered into over the years in connection with the song. I had pieced together the relevant facts and legal issues in the hope that I would miraculously find that Gallo and/or the Linda family could claim some rights in the song which would lead them to the pot of gold. It had been a daunting task. I had spent many hours sifting through all the documents and at the end of it all I had produced a lengthy written opinion for Gallo. The position I had arrived at was an interesting one – and one that surprised everyone, including me.
The Solomon Linda story
Solomon Linda was an unsophisticated and uneducated Zulu man who hailed from what was then Natal. He came to Johannesburg to seek his fortune and got work as a cleaner in Gallo’s warehouse. He was also a talented musician and performing artist. Together with a group called The Songbirds, he performed in the music halls of black society at the height of the Sophiatown era in Johannesburg. In about 1938 he composed the song Mbube (which means ‘lion’ in Zulu) and Gallo made a record of it. The record sold reasonably well and Linda derived a meagre income from royalties. In January 1952 Linda assigned, or transferred, the worldwide copyright of his song Mbube to Gallo.
At about this time, Gallo sent Linda’s record of Mbube, along with several other Gallo recordings, to the United States to see whether there was a market for them there. The song came to the attention of Pete Seeger, a well known American songwriter and singer. There was thought to be no market for Linda’s record, but Pete Seeger saw potential in the song and he transcribed it from Linda’s record and later made a revised version named Wimoweh. (‘Wimoweh’ was Seeger’s transcription of Linda’s enunciation of the word ‘mbube’ on his record.)
Wimoweh was performed and recorded by Pete Seeger and his group, The Weavers. A company Seeger was associated with, Folkways Music Publishers, claimed copyright in Wimoweh as an original work. In this guise, the song made it to the hit parade in the United States and became an international hit. Folkways and Gallo entered into several agreements over the years regarding Wimoweh, the gist of which was to grant rights to Gallo for its exploitation in various African countries, while Folkways had the exploitation rights for the rest of the world.
Around May 1961 a group called The Tokens released a record embodying an adaptation of Wimoweh, but given the name The Lion Sleeps Tonight. Authorship of this version of the work was credited to Hugo Peretti, Luigi Creatore and George Weiss. Whereas Wimoweh was almost entirely an instrumental piece, The Lion Sleeps Tonight was a song with words and it boasted some variations and innovations to the original melody. A company called Token Music Corporation claimed copyright in The Lion Sleeps Tonight.
Folkways and Token Music fought various legal battles in the United States as to who actually owned the copyright in The Lion Sleeps Tonight. Token Music, or its successor in title, Abilene Music, won the day. The Lion Sleeps Tonight achieved enormous fame and success and graced the hit parade for many years