Africa: The somnolent lion roars

July 24 2019

Solomon Linda from Zululand composed an ethnic song called Mbube (meaning lion). Gallo Records released a record of it. Gallo took assignment of the worldwide copyright for a pittance. In the 1950s the record made its way to the USA. A famous folk-singer reworked the song and made it into a hit song called Wimoweh. A decade later Mbube was further reworked into mega hit-song called The Lion Sleeps Tonight ("LST"). In the 1990s LST was incorporated into Walt Disney's stage show and movie The Lion King. In particular, Mbube's incarnation as LST, made countless millions of US dollars. Solomon Linda and, after his death in 1962, his heirs, saw none of this money and existed in penury.

Rian Malan, an investigative journalist, published an exposé of the plight of the family and the injustice of the situation. Gallo initially sought to rectify the situation by taking legal action on behalf of the heirs, but abandoned the project. Owen Dean and a team of philanthropically minded lawyers decided to take up the cause of the heirs. Relying on an obscure historic relic contained in the British Imperial Copyright Act, known as the "Dickens Clause", in tenuous financial circumstances they brought a copyright infringement action against Disney in the South African court. Acting in the name of the executor of the estate of Linda, they claimed royalties for the uses by Disney of LST in South Africa. They contended that the copyright in Mbube for South Africa and throughout the former British Empire reverted to the estate in 1987. To found jurisdiction against Disney, they attached all Disney's South African registered trademarks and thus obtained a lien on them. At the same time they launched an intensive international propaganda campaign portraying the plight of the heirs at the hands of entertainment moguls.

The matter went to a preliminary hearing and the court accepted the argument based on the Dickens Clause. It found that the executor had a prima facie case. Before the matter came to trial an extraordinary settlement was reached. Whereas only paltry damages in South Africa were in issue, Disney and its LST licensor agreed to pay a lump sum as compensation for past infringements and royalties for future uses of the song, on a worldwide basis. A trust was established to administer the funds for the benefit of the heirs. Money flowed to the family from the proceeds of LST.

Netflix released a movie called The Lions Share in which the story of the case is recounted. The movie adopts an unwarranted political slant and skews the presentation of the facts accordingly. It intimates that malfeasance has occurred in the management of the funds, despite the available evidence being to the contrary. The suspicions are based on the unfulfilled expectations of the heirs. A proper understanding of the case shows those expectations to be unrealistic. The full story of the remarkable case can be found at https://www.spoor.com/en/News/awakening-the-lion-in-the-jungle/.