Tafelberg Short: Awakening the Lion. Owen Dean

Mbube and that The Lion Sleeps Tonight was in turn derived from Wimoweh. Although the later two versions of the work were eligible for copyright in their own right, they were nevertheless derivatives of Mbube and so the owner of the copyright in Mbube could potentially control the use of later versions of the work.

      When Solomon Linda wrote Mbube in 1938 the song, as an original musical work, enjoyed copyright in South Africa through the South African Patents, Designs, Trade Marks and Copyright Act, 1916, and throughout the civilised world by virtue of an international treaty, the Berne Convention, of which South Africa was a member, as well as various other treaties signed by the country. As the author or composer of the song, Solomon Linda was the initial copyright owner.

      At that time, South Africa’s law of copyright was in fact regulated by the British Copyright Act of 1911 – known as the Imperial Copyright Act because Britain had it legislated and adopted in all its overseas territories, i.e. throughout the British Empire and Commonwealth. The 1916 South African Act (incorporating the Imperial Copyright Act of 1911) was repealed by the Copyright Act, 1965. It in turn was repealed by the Copyright Act, 1978, which is the still the Act today.

      In terms of all of these statutes, the existence, ownership and duration of copyright in a work is determined by the Act in force at the time when the work was made, even if the Act in question had been repealed by a later Act. In other words, these aspects of the copyright in Mbube were determined by the 1916 Act (incorporating the Imperial Copyright Act). Since the Imperial Copyright Act was in force throughout the British Empire and Commonwealth, this meant that if Solomon Linda was the initial owner of the copyright in the song in South Africa, he was also the copyright owner throughout the British Empire and Commonwealth.

      When the copyright in a work is assigned from one person to another, the person giving up the rights (the assignor) transfers them all to another (the assignee). Once transfer has taken place, the assignor normally has no rights to the work. Copyright also passes from one person to another in terms of the law of succession. When a copyright owner dies, unless there is a specific provision regarding the ownership of copyright held by him, that copyright passes to his heirs as a normal piece of property or an asset in his estate. But Solomon Linda assigned the worldwide copyright in Mbube to Gallo in 1952, thereby giving up all rights to that song.

      The purchase price for the copyright back in 1952 was 10 shillings. Little did Solomon Linda – and no doubt Gallo – know at the time that the song would become worth billions of US dollars.

      Solomon Linda died on 8 October 1962, but he had already divested himself of all rights in Mbube so no rights to the song passed to his heirs. Nevertheless, adopting a belt-and-braces approach during the disputes in the United States between Folkways and Token Music over ownership of the copyright in Wimoweh/The Lion Sleeps Tonight, Folkways got Regina, Solomon Linda’s widow – against the possibility that she might conceivably hold some rights in the song Mbube – to transfer her right, title and interest in it to them in 1983. But in fact she didn’t hold any rights in 1983; for all practical purposes, Folkways probably already held the rights anyway.

      When Regina died in February 1990 she left her entire estate to her four children, Elizabeth, Fildah, Delphi and Adelaide, in equal shares. No rights in Mbube were included in the assets of her estate at that time. However, no doubt in an excess of caution, in March 1992 Folkways also got Solomon Linda’s children to assign the right, title and interest in Mbube to them. The children likewise held no such rights at the time.

      All this meant that Solomon Linda, his wife Regina and his children had done a good job of assigning away all rights in the song Mbube. They no doubt had little or no conception of what they were doing. Although Gallo and Folkways had entered into a multitude of agreements, licensing Mbube and Wimoweh backwards and forwards, none of these agreements created any rights in favour of Solomon Linda or his family. On my first reading of the documentation, the ability of Solomon Linda’s heirs to claim any rights in Mbube, and therefore in The Lion Sleeps Tonight, didn’t look at all promising. Indeed, it seemed to be a lost cause.