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The Lion King’s Ransom: The story of “Mbube”, “The Lion Sleeps Tonight&#8221

I’m sure you’ve heard at least one of the versions or adaptations of “The Lion Sleeps Tonight”. It has been re-recorded or adapted over 150 times since it was first recorded in 1939, yet it took until 2006 for the writer Solomon Linda to be credited as a writer.

Who was Solomon Linda?

Solomon Linda (far left) & The Evening Birds, holding 3 of their trophies for singing contests.

Solomon Popoli Ntsele, also known by his clan name “Linda”, was a South African singer known for what is now called Isicathamiya, a type of South African a capella singing later made world-famous by Ladysmith Black Mambazo. In fact, the style is also known as Mbube, named after Solomon Linda’s most famous song, it’s that song that is the basis of “The Lion Sleeps Tonight”.

Solomon Linda was born in 1909 in Pomeroy a small town in the South African province of KwaZulu-Natal. In 1931 he left Pomeroy to look for work in Johannesburg. He took a job in a furniture shop during the day and sung in a choir called The Evening Birds at night. The choir took part in local singing contests that were a big part of the community, often the prize would be a goat or some other livestock. Solomon’s group were regular winners of these contests.

The group was originally managed by Linda’s two uncles, Solomon and Amon Madondo, and they disbanded in 1933. Solomon Linda found work at the Carlton Hotel and started his own choir using the Evening Birds name. They developed their act performing at weddings and entering choir competitions. In 1939 he was discovered by Griffith Motsieloa, a talent scout working for Gallo Record Company.

Gallo Record Company

Gallo Record Company is South Africa’s largest independent record label, founded in 1926 by Eric Gallo it now owns 75% of all the recorded music from South Africa. It was originally set up to distribute recordings imported from Brunswick Records in the USA, but Gallo noticed that despite a wealth of local musical talent there was no recording studio in the entire country.

Gallo had previously sent artists to London to record with sound engineer John Hecht at The Metropole Record Company. So, when the company shut down in 1932 he acquired the recording equipment and shipped them to South Africa, he even convinced Hecht to move too and help set up recording and production for Gallo in South Africa.

Setting up this studio not only gave the country its first professional recording studio, but it also enabled the local industry to continue to grow and thrive when imports of records from the UK stopped during World War Two.

Gallo Recording Studios was not only the first and only studio in South Africa, it was the only studio in the entire sub-Saharan area. However, the first studio they built was on a busy road and traffic noise forced them to relocate. In 1938 it moved to the corner of Troye and President street where it remained for the next three decades.

It was in this studio that Solomon Linda and his group The Evening Birds went to cut their first record. They chose to record one of the songs they regularly sang at weddings, their own version of a Zulu folk song that Linda had added his own words and melodies to.

Solomon Linda’s Original Evening Birds “Mbube” Recorded in 1939

Hit Record

“Mbube”, meaning Lion, was recorded in just three takes. The first 2 takes were duds but on the third take on the final chorus, 2 minutes and 22 seconds into the recording, Solomon broke from his usual melody and improvised 13 notes that went on to earn an estimated $15 million in songwriting royalties.

Soon after the recording was finished Gallo Records paid Solomon Linda 10 Shillings, about 65 cents, for the rights to the recording and the song. Solomon also took a job in the record company’s warehouse and worked there until he died.

The song is based around the chant of “Mbube, I Mbube, I Mbube, I Mbube” with Solomon Linda singing a melody, partly in falsetto, over the top. The record was released and was a huge hit, eventually becoming the first South African record to surpass 100,000 sales.

The sheet music for “Mbube”

By 1948 copies of “Mbube” had been shipped all around the world, and it came to the attention of Alan Lomax who at that time was the director of folk music for Decca Records.

Alan Lomax

Alan Lomax

Alan Lomax had been collecting and archiving folk music from all around the world for many years. His father John Lomax was also a respected musicologist, they collected and catalogued music for the Archive of American Folk Song at the Library of Congress.

In 1942 when Congress cut funding for the folk song archive, Alan Lomax continued independently. Travelling the world and even making hundreds of his own recordings of traditional music.

Lomax passed the record on to his friend, folk singer Pete Seeger, who was in the folk group Almanac Singers with his sister Bess Lomax. He liked the song and wanted to perform it at his gigs but didn’t have the sheet music to learn it from. Instead, he had to transcribe the song entirely by ear. He was an accomplished musician and had no problem working out the music but he struggled with the words.

Pete Seeger


He knew the song was called “Mbube” but had no idea what that meant, how to pronounce it or that it was this word that was being chanted throughout the song. Instead of hearing “I Mbube”, pronounced Iyemboobay, he heard “ah-wimoweh” so this is what he sang when performing it.

In 1952 the song, now titled “Wimoweh”, was recorded and released by another group founded by Seegers, The Weavers. It was the b-side of their single “Old Paint (Ride Around Little Dogies)”. It was no longer a South African style A-Cappella song, as a rhythm section and horn arrangement had been added. It sounded more like big band jazz than Zulu folk music, but Solomon Linda’s unmistakable melody still stood out. In The Weavers arrangement of the song the melody that only appeared at the end of the original version was now repeated throughout.

Pete Seeger was keen to make sure that the writer of the original song was credited on this new version so he had his publisher call Gallo Records in South Africa to find out more about “Mbube” and it’s origins.

What happened on that phone call kicked off a chain of events that meant Solomon Linda would never be credited or paid what he deserved for his song in his lifetime.

When asked about the origins of “Mbube”, they were told it was a traditional Zulu song, and little mention if any was made of Solomon Linda’s contribution to the composition. It’s also likely at that time they were told how to pronounce the word but still went with “Wimoweh” as it would be much easier for English speakers to pronounce.

Paul Campbell

Now, when a song is said to be “traditional” it generally means the song is so old that the writers are either unknown or have been dead too long for their works to still be protected by copyright. In most countries, the copyright term for creative works is the lifetime of the writer plus 70 years.

This meant that as far as the US publisher was concerned there was nobody to credit and they were free to register The Weavers’ arrangement as a new composition in its own right. Which is actually how a lot of The Weavers songs came about.

This is taken from The Weavers songbook.

“In the highly complex realm of recording and publishing of 1950, The Weavers found little precedent for processing material produced through our accustomed modus operandi. In this book are pieces which are enlargements of fragments of otherwise forgotten songs. There are songs which are the result of combining elements of several songs. Sometimes our contribution is no more than a unique arrangement, an added verse or a line or two, or the simple restatement of the story or melody as we originally heard it. There are others which are totally the creation of one or another member of the group, edited and reworked by the others. To those songs which were published during the period between 1950 and 1953 we assigned the name ‘Paul Campbell,’ as representing both the combined efforts of the four people then known as The Weavers and the concept of musical work to which they were committed.”

So, “Wimoweh” was credited to “Paul Campbell” and 13 years after that recording in Africa’s only studio was made, “Mbube” was renamed and introduced to the USA.

Folkways vs Gallo

In January 1952 The Weavers’ publishers, Folkways, registered the copyright of “Wimoweh” in the United States. It clearly didn’t take long for somebody at Gallo Records to realise their mistake as in May 1952 they registered their own copyright claim for “Mbube” in the US.

Gallo then contacted Folkways to let them know that “Mbube” was in fact an original composition written by Solomon Linda that they owned the rights to. This meant that now “Wimoweh” was an infringement of the copyright in “Mbube” so Folkways and Gallo came to an agreement for an undisclosed amount for Gallo to forgo any infringement claims in the USA in return for the rights in South Africa and a few other African territories of little interest to a stateside publisher like Folkways.

The deal was incredibly bad not just for Gallo but also for Linda as it effectively transferred ownership of “Mbube” (in the form of “Wimoweh”) to Folkways. Gallo could no longer claim Wimoweh infringed on Mbube, therefore, any future versions of Wimoweh would also be free of such claims.

Why did he do this?

Well at the time in 1952, most of the developed world were signatories to the Berne Convention of 1886. This old European law enshrined the rights of creators, it granted the inalienable right to be credited (moral rights) and clearly stated that copyright existed as soon as the work was “fixed” which could be done by simply writing it down or making an audio recording.

South Africa signed the Berne Convention in 1928 so under this law the moment Solomon Linda recorded the song back in 1939 it was protected by copyright and his moral rights were established.

However the USA had not signed the Berne Convention in 1952, in fact, it wasn’t until 1988 that the USA finally did…over a century after it was first conceived.

At the time under US copyright law, it was necessary to register copyrights before any protections commenced. Folkways had told Gallo that their copyright of “Mbube” in South Africa was not recognised in the USA so they had no legal recourse when it came to “Wimoweh”.

In fact, that was only half the story. It’s true that in the USA they made their own rules for copyright but as a publisher, in a Berne Convention country, Gallo’s copyright was valid pretty much everywhere except the USA so their bargaining position was much stronger than Folkways had them believe.

Given what they were lead to believe it’s likely they thought they had done well to get rights to “Wimoweh” in parts of Africa.

At some point in the ’50s, Pete Seeger found out about Solomon Linda and felt bad about not giving him his proper credit and royalties. He wanted to do something about it, so he wrote a cheque for $1000 but getting money into the hands of a poor black man it what was now apartheid-era South Africa was not going to be easy. He knew if he just sent it to Gallo Records they wouldn’t give it to Linda so instead, he got in touch with anti-apartheid campaigners and they helped him hire a local lawyer to get the money to him.

He also informed his publisher he no longer wanted any of the money from “Wimoweh” instead, it should be sent to Solomon Linda.

“Wimoweh” became a very popular song in The Weavers’ repertoire and inspired a myriad of cover versions. However, The Weavers version fell out of popularity after Pete Seeger was called before the House Un-American Activities Committee to answer for his previous support of Soviet Communism.

The Lion goes from strength to strength

Between 1952 and 1961 countless cover versions were released, Jimmy Dorsey, Yma Sumac, Bill Hayes, The Kingston Trio and Scottish singer Karl Denver (known for his yodelling) all cut their own versions of The Weavers arrangement. Karl Denver’s version reached No.4 in the UK charts.

In 1960 South African singer Miriam Makeba, signed for RCA Victor in the USA and included a version of “Mbube” on her debut album, the version was true to Solomon Linda’s original 1939 recording and credited “J.Linda” as the writer.

In 1962 she performed her version of “Mbube” for JFK at his famous birthday party, moments before Marilyn Monroe took the stage.

Miriam Makeba didn’t receive any royalties for that album as RCA had to buy her out of her contract with her South African label….who was of course… Gallo Records (trading as Gallotone). Gallo received $45,000 in the settlement, the amount was recouped from Makeba’s share of the revenue and meant she didn’t get a cent. It’s also unlikely that Solomon Linda received anything from that release either.

In 1961 another RCA Victor act, The Tokens, were in need of song for their next single. They had some minor success prior to this but nothing like what was to come.

The Tokens

The Tokens

The Tokens lead singer Jay Siegel knew “Wimoweh” from hearing The Weavers version on the radio and taught it to the rest of the band.

It was decided they would record the song, but RCA felt the song needed more lyrics to work with The Tokens doo-wop style so they hired lyricist George David Weiss to rework the song.

When he found out they were going to record a version of “Wimoweh” Jay Siegel wanted to know what it meant. He visited the South African consulate and found out that wimoweh didn’t mean anything at all…its wasn’t even a word. He discovered the word was Mbube and it meant the lion. He told his producers what he had found out.

Using Solomon Linda’s improvised melody as a guideline Weiss penned the words “In the jungle, the mighty jungle the lion sleeps tonight”. He would later claim he himself had researched it and had been told it was a Zulu hunting song for on the way to the hunt… or from…. he wasn’t sure.

Now aside from any cultural inaccuracies its worth noting that lions don’t actually live in the jungle, they live in the savannah…anyway, I digress.

The words Weiss had written didn’t quite fit the melody from Mbube/Wimoweh so Siegel had to adapt the melody further to fit the new words and added a slight variation in the second half of the chorus. A small yet not insignificant change like that would still by today’s standards warrant a writing credit in itself. “Change a word, take a third”, as the old music industry adage goes.

So from Mbube to Wimoweh and now “The Lion Sleeps Tonight”. 22 years after it was first recorded, Mbube wasn’t sleeping at all.

The producers of The Tokens version, Hugo Peretti and Luigi Creatore, were not unfamiliar with the practice of claiming obscure and/or public domain works under an alias. They had done just that with countless songs including “Pop goes the weasel” and “The first noel” despite both songs being from England and popular in the 1850s!

They either recognised Paul Campbell as an alias for The Weavers or found out with a little digging. Either way, they felt that they wouldn’t have any issues with creating a new version.

To say that they treated this song as an insignificant novelty is a stark understatement. They literally phoned-in the mix, not even bothering to go to the studio in person to finish it. RCA then put it on the b-side of the wholly forgettable song “Tina”.

The single bombed, the a-side was so awful people didn’t even bother to give the other side a listen. Like countless other hits in pop history, it took for one DJ to flip it over and play the other side. In this case, it was Dick “The Derby” Smith a DJ from Worcester, Massachusetts.

Dick Smith put the b-side on heavy rotation and after becoming a local hit it began to climb the national charts.

Folkways vs Token Music

Inevitably it wasn’t long before Howie Richmond at TRO-Folkways heard the song on the radio and recognised it as a reworking of “Wimoweh”.

It took just 14 days for Folkways to hear about it and notify the publishers, Token Music Publishing, that they had infringed their copyright. Token registered their claim to copyright on October 17th, 1961 according to documents filed in a later court case Folkways notified Token on the 31st.

The situation was a bit awkward, Richmond wanted to exercise his rights to Wimoweh and this new version but didn’t want to jeopardise his working relationship with Hugo Peretti and Luigi Creatore, whom he was on first name terms with…. Huge and Luge he called them.

So they came to an agreement. TRO-Folkways would keep the publisher share of what would be referred to in court as “the lion version” and Hugo and Luigi would get 100% of the writers share, after all, Pete Seeger didn’t want it, right?! There was no mention of Mbube or Solomon Linda in this discussion.

On December 18th, 1961 the agreement between the two parties was signed and a week later the song was number 1. Solomon Linda did get to hear this new version shortly before his death in 1962 but never received his share of profits and died in poverty with about $20 to his name. His family were unable to pay for his tombstone until sometime in the 80s.

The agreement for “The Lion Sleeps Tonight” assigned all rights in this new version to Folkways who registered the copyright. Folkways also drafted an agreement providing royalty distributions from BMI, their performing rights society.

A New Deal

Over the next 20 years, the new version took on a new life, again. The Tokens version was a big hit and a number of other cover versions were released around the world. Each version earned performance royalties for the registered owners, Folkways.

In 1972 Robert John’s version went to number 3 on the US charts and was Gold Certified (at the time Gold Certification was 1,000,000 copies). Another 10 years later and the song sold 1 million copies in the UK.

It was released under the name Tight Fit, a pop group fronted by male model Steve Grant and 2 female back up singers. None of them actually featured on the recording, the session singer was Roy Ward from 70s British rock band City Boy and the Steve Grant fronted line-up was formed after the release became successful.

Tight Fit gained worldwide fame for their version of the song that they didn’t actually sing.

Copyright renewal

In the 50s and 60s the copyright term in the USA was 28 years, in 1980 Gallo’s original copyright of “Mbube” expired, it was renewed and the rights were apparently signed over to Folkways by Solomon Linda’s window.

Folkways’ copyright in “Wimoweh” also expired and was renewed in 1979 by Folkways under the name Paul Campbell and thereafter assigned to Folkways.

The original copyright term for “The Lion Sleeps Tonight” expired in December 1989. Just prior to that in October 1989, Weiss had contacted Folkways on behalf of the writers of “the Lion version”. He told them they believed the agreement they made was only for the initial copyright term and that they intended to renew the copyright without any provision to pay Folkways a share.

Naturally, Folkways refused, so in 1990 Weiss and the other songwriters filed a demand for arbitration. They wanted a declaration that they were “The sole and exclusive owners of all rights in and to the (Lion Version), including the worldwide copyright since the composition entered its United States renewal term of copyright”.

As well as demanding all the revenue received from December 1989 onwards Weiss and the other songwriters wanted to compel Folkways to notify all its licensees that it no longer has any interest in the copyright in the Lion Version.

TRO/Folkways vs Weiss (Abeline Music)

In April 1991 the arbitration panel ruled in favour of Weiss and Abeline music, they dismissed Folkways’ claim that since the end of the initial copyright term “The Lion Sleeps Tonight” was an infringement of their copyrights. They made the slightly odd ruling that the copyright had “reverted” to Weiss and Abeline music after the initial copyright term.

This is odd because, for something to revert to someone, that person had to previously have owned it. As Weiss and Abeline had never owned the copyright in either “The Lion Sleeps Tonight”, “Wimoweh” or “Mbube” then how can it “revert” to them?

Even more strangely they ruled that in future “The Lion Sleeps Tonight” could be exploited free from infringement claims pertaining to “Wimoweh” or “Mbube” (the underlying works).

Folkways appealed this decision, of course, they argued that only the original parts added to Mbube/Wimoweh to make “The Lion Sleeps Tonight” could revert to them as that is all they ever had rights to. They also argued that in granting the right to exploit free of infringement claims they had exceeded their powers.

Unfortunately for Folkways, the grounds for vacating an arbitration award are extremely narrow and as the challenging party, the burden of proof lay entirely with Folkways. So in 1993 after 2 unsuccessful appeals, the 2nd Circuit Court upheld the decision of the arbitration panel.

So after a 4-year legal struggle, Weiss had won full rights to the song he had just added words to. The panel had granted the right to exploit the Lion Version free from copyright infringements of the underlying works which means Solomon Linda’s contribution to “The Lion Sleeps Tonight” was no longer recognised.

The Lion King

The 1993 decision could not have come at a better time for Weiss and Abeline, as the following year the most lucrative use of “The Lion Sleeps Tonight” occurred.

Timon and Pumbaa sing “Wimoweh/The Lion Sleeps Tonight” for just under 30 seconds

On June 15th 1994 Disney released its 39th feature-length animated motion picture, The Lion King, which remained Disney’s highest-grossing movie until Pirates of the Caribbean in 2006 and was their highest grossing animation until Toy Story 3 in 2010. The movie grossed just shy of £1billion.

“Wimoweh” and “The Lion Sleeps Tonight” had been steady earners for the writers and publishers for decades, it had been used in at least half a dozen movies before but this small usage in a Disney movie sent the earnings into overdrive.

The license fee paid for the use of the song would need to account for each copy made and sent to each cinema, how long that cinema run would be and then copies sold for home viewing. Later when it gets shown on TV it would generate even more money. Adaptations like the musical stage show that would include the song too, would also earn money.

The earnings would likely be well into the millions and would continue for decades more.

As Folkways had tried to use Solomon Linda’s right to a share of the song as a way to retain their own interest, when ruling against them the arbitrators added a proviso that a small portion (reportedly 10%) of the composition’s performance royalties be sent to South Africa for Linda’s family.

Rian Malan

In 2000 South African journalist Rian Malan published an article in Rolling Stone, detailing the story of Solomon Linda and Mbube.

“This one’s for Solomon Linda…” he wrote, “…a Zulu who wrote a melody that earned untold millions for white men but died so poor that his widow couldn’t afford a stone for his grave.”

He visited Solomon’s daughter’s to find out if they had been receiving their court-mandated share. He exchanged messages with Weiss and other key characters in the saga, he revealed some alarming details of the story to the world.

If the name Malan seems familiar it’s because D.F. Malan, Rian Malan’s grand-uncle, was the Prime Minister of South Africa in 1948 when apartheid was introduced.

Rian Malan gained prominence after his memoirs My Traitor’s Heart, published in 1990, became a bestseller around the world. He has said that his family heritage is a source of great guilt for him and that drives him to do what good he can for the indigenous people of his adopted homeland.

True to that, Rian went through every scrap of paper Adelaide, Elizabeth, Delphi and Fildah Ntsele had given him relating to their late father’s music. It seems they did receive some money over the years since the court ruling, a total of $12,000 between 1993 and 2000. Less than $2000 per year, which seems very low for 10% of a song used in a Disney movie.

Solomon Linda’s four daughters Elizabeth, Adelaide, Fildah and Delphi

They seemed satisfied with the money, $1700 a year is decent money for them and they were happy that their father’s music was living on. Then Rian told them what the song should have been worth, he tells them about Wimoweh and Pete Seager, they laugh out loud when told about Weiss’s “research” into the song’s meaning and his assertion that it was a hunting song. They insist its a nonsense song meant to build confidence, “you are a lion, you are a lion” the chant goes. They say it’s their father saying that to himself.

The sisters also brought up a concerning point, their father was illiterate, he couldn’t read and was unable to even write his own name. They don’t believe the document that assigned the worldwide rights to “Mbube” for $2 to Gallo Records was signed by their father at all. They claim whenever asked to sign documents he would simply make a mark on the dotted line, on the document Gallo has his signature is written is full.

They also believe that even if he did sign it he would not have understood what he was signing, what it meant and what it should have been worth. Until Rian Malan arrived in their lives neither did the Ntsele sisters.

Adelaide, Elizabeth, Delphi and Fildah all believe that his lack of education and the racial power dynamic in South Africa at the time would have made him feel obligated to sign anything presented to him without question.

They didn’t dwell on the legitimacy of the documents and instead focussed on reclaiming some of the earnings and get their father the writing credit he deserves.

Follow the money

Malan contacted Raymond Tucker, the lawyer who was the conduit for the payments. Tucker had been contacted by Pete Seeger’s representatives decades previously and claims he had been depositing money into an account in the name of Mrs Regina Linda (Solomon’s wife) for many years. Solomon’s daughters say the money didn’t start coming until the 80s.

Elizabeth and Fildah look at a picture of their father with his group, The Evening Birds.

They remember being so poor in 1962, when their father died, that they couldn’t afford to buy a gravestone. Their mother brewed beer illegally to make ends meet but they all still went to school barefoot. When the money started coming sometime in the 80s they were then able to finally add a headstone to their father’s grave.

When Rian Malan asked Raymond Tucker to see his files to get to the bottom of this discrepancy Tucker accused Malan of being a troublemaker and slammed down the phone. He had no reason to withhold the information, despite citing client confidentiality, as Malan had a signed letter from the sisters authorising him to discuss the matter.

Refusing to accept he had hit a brick wall, Rian Malan contacted TRO/Folkways to see if they would tell him how much money they sent. He never heard back from them other than an initial response saying it would take time to answer his questions.

He contacted David Weiss, who at that time was President of the Songwriters Guild of America (perhaps an odd position for someone involved in plagiarism?). Weiss claimed he sends money regularly to “Mrs Linda” and has done for decades. At the time of making that claim, Regina Linda had been dead for 10 years.

Despite not getting all the answers he wanted Rian Malan did manage to work out that Soloman Linda’s family were getting 12.5% of “Wimoweh” (Pete Seeger’s share) and 1% of “The Lion Sleeps Tonight”. He decided he would publish the story as it was and hope that it would inspire someone else to take up the fight and perhaps they would succeed where he failed?

Cash flows

Shortly before the article was published the Ntsele sisters received 2 large payments totalling nearly $12,000. That was almost equal to all the payments they had received since the death of their mother almost 10 years previous. They were overjoyed and called Rian Malan to let him know.

After a bit of digging, they found out the money came from Pete Seeger. It turns out that his publisher had not been sending all the money from “Wimoweh” after all. According to Seeger he only found out when the song was used in an advert and earned around $6000, that prompted him to check other accounting statements to see if “Wimoweh” was on them. It was, so he added up all the money he had received for Wimoweh and sent another payment to South Africa.

Perhaps what Pete Seeger said is accurate or maybe Malan’s digging had prompted Seeger to make sure he was doing the right thing. Either way, he shook the tree and some fruit fell.

Adelaide Ntsele died in 2001 of AIDS-related tuberculosis, as they couldn’t afford the medication when she fell sick and was beyond treatment by the time the money arrived from Pete Seeger. Aside from losing their sister, for the 3 surviving daughter’s of Solomon Linda the next few years proved to be a lot more positive.

Rian Malan’s article did inspire others to take up the fight, journalists from various publications around the world came to interview them, it became a big story all around the world. South African filmmaker François Verster, who had previously made a TV documentary about the story of Mbube, made a feature-length documentary called “A Lion’s Trail” that was aired in the USA on PBS and eventually won an EMMY Award.

New legal team

After Malan’s run-in with Raymond Tucker the 3 sisters took on Hanro Friedrich as their lawyer, he collected what paperwork there was from Tucker and did his best to manage the income that was being paid and handle enquiries from the press. Friedrich did what he could but he was not a copyright lawyer, or an entertainment lawyer so he didn’t have any specific experience or expertise in these matters.

The attention from Malan’s article also leads to Gallo Records getting inundated with phone calls demanding they take action, so they enlisted the premier copyright lawyer in South Africa, Owen Dean. He literally wrote the handbook on copyright in South Africa.

Handbook of South African Copyright Law by Owen Dean

Owen Dean’s mission was clear, “Well we want to get recognition that he was the composer of the original version of the song, that’s important to them and it’s important to South Africa as a country because it is actually a bit of South African culture this song. The next important thing is to actually get income for the family because we feel that they are entitled to enjoy the benefits of the very successful song their father wrote all those years ago.”

As Solomon Linda had assigned the copyright in the composition and the recording to Gallo Records, who had then assigned it to TRO/Folkways, there wasn’t much Dean could do. The situation was definitely unfair, arguably immoral but it wasn’t actually illegal.

When it seemed there was no hope for Solomon Linda’s daughters, Owen Dean remembered an old law dating back to the 1911 British copyright act. Prior to that act copyright duration was the lifetime of the author plus 25 years, they decided to amend the law to help the family of one of Britain’s most celebrated authors, Charles Dickens.

Dickens died suddenly from a stroke in 1870 and although he left an estate worth £80,000 (about £6,000,000 in today’s money) as the copyright in all his works expired in 1895 anybody that wanted to could print and sell his books without having to pay anything. By 1911, with no income from the books, Dickens’ family was close to financial ruin. The matter was considered so serious it was debated in parliament.

The copyright law in the UK was due to be updated anyway, certain aspects of the Berne Convention needed to be written into law and there was the brand new medium of audio recordings to legislate too. One of the significant changes was copyright duration being extended to the lifetime of the author plus 50 years. They added an additional provision that stated that any agreements the author made in their lifetime would end 25 years after their death meaning the remaining 25 years would go to the heirs of the author. This meant that in 1987 the rights to Mbube should have passed to Solomon’s Linda’s family.

As South Africa was a British colony when the law was passed it was made part of South African law.

On a side note, Charles Dickens had his own copyright issues, also with Americans copying and selling his work without having to pay him as the USA was not part of the newly established Berne Convention. His feelings on the matter found its way into his books, he wrote this in Nicholas Nickleby about a man printing and selling books without paying the author “show me the distinction between such pilfering as this, and picking a man’s pocket in the street“.

Dean delivered his conclusion to Gallo Records in a 20-25 page essay laying out the basis for the case and how a law nearly a century old would be their secret weapon.

For Gallo Records, what Owen Dean had uncovered was “heart-stopping”. They decided they would fund Dean to take on the case.

Gallo Records contacted Hanro Friedrich and Solomon’s 3 surviving daughters to tell them the news. Friedrich and Dean began comparing notes and compiling all the information in order to prepare for this landmark copyright case.

Hanro Freidrich and Elizabeth, Delphi and Fildah Ntsele.

To give them the best chance against the Americans they needed the case to be heard in a South African court. However, the South African court only has jurisdiction if the defending party has assets within South Africa. Abeline Music had no assets in South Africa. There was a company using “The Lion Sleeps Tonight” that did have very valuable assets in South Africa. The Walt Disney Company.

In July 2004, Owen Dean obtained a Pretoria High Court order attaching 240 Disney trademarks, including Donald Duck, Mickey Mouse and The Lion King movie, pending the outcome of the family’s claim against the company. Which meant If they won damages and Disney refused to pay, Solomon Linda’s family had the right to sell those trademarks in South Africa.

It took Disney just 4 days to respond, they appealed for the attachments to be set aside. Owen Dean and Hanro Friedrich were off to court much sooner than expected.

The appeal was denied and the trial date was set for February 21, 2006. Disney must have changed tactics and applied pressure on Gallo Records because with the trial date fast approaching they informed Owen Dean they were pulling out of the case. They felt it was too risky to take on a company the size of Disney.

Once again the situation appeared hopeless. It wasn’t just the money to pay Dean that Gallo provided, they also gave the case some added weight. It was the largest South African record company fighting the case not just the family of a poor Zulu songwriter.

No good story is complete without a “chance meeting” and that’s exactly what turned this tale. Hanro Friedrich was in the departure lounge of the airport in Johannesburg when he recognised Pallo Jordan, the South African Minister of Arts and Culture.

He introduced himself to the minister and explained the case they were trying make against Disney. Jordan had heard about the story of Mbube and agreed to help.

“How much do you need?” Jordan asked Friedrich. “A lot” was the simple reply. Pallo Jordan didn’t baulk at what was needed. He liked the idea of fighting to bring a small but significant part of their culture back home, beating the Americans would just be a bonus.

With the South African government on their side, the chances of winning seemed even stronger. Disney evidently agreed as shortly before the scheduled trial date they made an offer to settle out of court.

There would be a lump sum of money paid as damages and to account for unpaid royalties. It would also acknowledge that “The Lion Sleeps Tonight” is derived from “Mbube”. Solomon Linda would be given a writing credit and allocated a portion of the future publishing revenue, which would be paid into a trust on behalf of Solomon Linda’s family.

The settlement offered almost everything they had hoped for. Almost. The sum that they were originally suing for was around $2million. The settlement was “considerably less than that”, the exact amount in the settlement has never been disclosed and each of people involved signed a non-disclosure agreement so we cannot be sure how much was offered. There may also have been legal fees and taxes that needed to be deducted too, so there’s no way of working what Solomon Linda’s family would actually receive.

They agreed to the deal and the trust was set up, but it wasn’t really a happily ever after moment. When Rian Malan revisited Solomon’s Linda’s daughters 10 or so years later, for the Netflix documentary series ReMastered, he found that while their basic living conditions had greatly improved, they were still far from enjoying the sort of wealth that usually come from a hit song.

According to the sisters, the money took a long time to arrive and when it did they were treated “like children” when they asked for some of their money. They were never even told how much was actually paid into the trust in the first place.

Originally it was agreed that Hanro Friedrich, who had been working for the family for free since 1999, would receive 20% of the settlement and the rest would go to the family. Owen Dean would be paid by the South African government’s Department of Arts and Culture.

However, once the settlement arrived Owen Dean and his law firm sent the bill for the legal fees to the trust. According to the family, the Trust paid a large sum of money for legal fees.

Glenn Dean, the accountant for the trust, claims that on one occasion “one of the sisters” called him to ask for money just a short while after she had received some when he asked where the money went Dean claims the unnamed sister replied, “I drank it out”. An odd story that I find hard to believe, not least of all because only one of the sisters speaks English and he doesn’t speak Zulu. Also, 2 of the 3 sisters are tee-total.

Owen Dean repeated the same sentiments in an interview with City Press, he said the money they were given was “blown on alcohol” and later, in the Netflix documentary, accused the daughters of “dreaming up the problems” and lamented their lack of “gratitude”. When pressed for more detailed accounting all 3 trustees resigned.

Rian Malan did his best to review the financial details he was provided and could find no evidence of fraud or mismanagement within the trust but he did find that some statements were missing and he isn’t a forensic accountant.

In the future, the family will still receive royalties for “Mbube” and “Wimoweh” but will no longer receive anything for “The Lion Sleeps Tonight”, so will not get a cent from Disney’s recent live-action remake of “The Lion King” despite the song being included once again.

The researchers for the Netflix documentary estimate, based on the information they had, that the 3 sisters were given around $250,000 each by the trust over the 10 years after the settlement. Which may not be a fortune, but it’s certainly more than the 10 shillings their father was paid for the song.

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