SA Family Entitled to Lion’s Share of Royalties for Renowned Pop Song
Mention the title THE LION SLEEPS TONIGHT and it spontaneously brings to mind a pop song famous for its use not only through normal records and compact discs, but particularly in movies, stage shows and a range of other events. Over the years there have been a number of versions of this song performed by a variety of artists. THE LION SLEEPS TONIGHT as a musical work was until recently the subject matter of pending litigation in South Africa as the heirs of a deceased Zulu man were given the chance to claim what is rightfully theirs. Solomon Linda was a Zulu migrant worker and a member of the band, The Evening Birds. During or about 1938/1939 Linda composed and started performing MBUBE. Shortly thereafter he assigned his rights in the song to a record company for the nominal amount of ten shillings and eventually died on 8 November 1962 with R151.07 in his bank account.
In 2000 an article entitled “In the Jungle” was published in the Rolling Stone magazine. The well researched and revealing article told a sad story which smacked of the abuse of unsophisticated musicians by music industry moguls in relentless pursuit of riches. The story dealt with the success of derivative songs of Linda’s MBUBE (particularly THE LION SLEEPS TONIGHT), and mentioned that Linda had died a pauper and that his descendants were living in poverty in Soweto.
At the time MBUBE was composed South Africa, as a Commonwealth country, still had as its copyright law the 1911 British Copyright Act. The aforesaid legislation provided for a provision in terms whereof a reversionary interest would ensure that the copyright in MBUBE would revert back and vest in Linda’s estate 25 years after his death in 1962, namely 1987. A duly appointed legal representative of the author’s estate would then be in a position where the copyright subsisting in the particular work can be exploited for the last 25 years of its subsistence on behalf of the author’s heirs.
Whereas Linda composed MBUBE, it was contended that the underlying tune had been appropriated without his consent so as to create derivative works, namely WIMOWEH and THE LION SLEEPS TONIGHT.
Due to the fact that it was thought best to commence any proceedings to be instituted in South Africa, the aforesaid state of affairs was brought to the attention of Disney Enterprises Incorporated, Nu-Metro Home Entertainment (Pty) Limited and David Gresham Entertainment Group & Record Company (Pty) Limited in an attempt to reach an amicable settlement on the alleged infringement of copyright in MBUBE and royalties payable to the heirs of the author as a result of the use thereof.
However, no immediate settlement was forthcoming and litigation was inevitable. The Executor for Linda’s estate obtained a court order attaching all the trade marks of Disney Enterprises in South Africa, including Donald Duck, Mickey Mouse and the Disney trade mark itself (in total around 240 trade marks) as well as the copyright in the movie THE LION KING so as to establish jurisdiction in South Africa for the proceedings to be instituted locally. Despite an immediate reaction by Disney Enterprises to have the attachment order set aside, the urgent court found in favour of Linda’s estate as a prima facie case of copyright infringement had been made out.
The action was set down for trial on 21 February 2006. Shortly before the trial date, settlement negotiations took place between the parties, and these also involved Abilene Music. This company was drawn into the settlement negotiations by virtue of its position as the licensor, directly or indirectly, of all the defendants. The negotiations gave rise to a settlement agreement which met all the objectives of the Executor in Linda’s estate, namely the following:
- Abilene undertook to pay to the Executor an undisclosed amount by way of compensation for past uses of THE LION SLEEPS TONIGHT, and furthermore undertook to pay royalties to the estate in respect of all future uses of the song, on a worldwide basis.
- It was acknowledged by the defendants that THE LION SLEEPS TONIGHT was derived from MBUBE.
- Solomon Linda would henceforth be designated as a co-composer of THE LION SLEEPS TONIGHT.
The settlement further provided that the Executor would withdraw the litigation and all claims on behalf of the estate against Abilene or any of its licensees would be waived. The past and future royalties were to be paid into a Trust to be established for the proper administration of the funds in the favour of Linda’s heirs.
The settlement acknowledged at least by implication that THE LION SLEEPS TONIGHT has a South African origin and is thus an element of South African culture. Furthermore, it demonstrated that the reversionary interest in copyright is available to the heirs of South African authors who created their works during the period 1916-1965.
It had taken six years to bring this matter to a satisfactory conclusion.
SPOOR & FISHER