View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Fordham University School of Law Fordham Intellectual Property, Media and Entertainment Law Journal Volume 20 Volume XX Number 1 Volume XX Book 1 Article 5 2009 From Mbube to Wimoweh: African Folk Music in Dual Systems of Law Deborah Wassel Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Deborah Wassel, From Mbube to Wimoweh: African Folk Music in Dual Systems of Law, 20 Fordham Intell. Prop. Media & Ent. L.J. 289 (2009). Available at: https://ir.lawnet.fordham.edu/iplj/vol20/iss1/5 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. From Mbube to Wimoweh: African Folk Music in Dual Systems of Law Cover Page Footnote I would like to thank the incredible editors and staff of the IPLJ for their hard work, as well as Professor Tracy Higgins, without whose expertise this Note would not be possible. A special thanks to my parents and sister, whose endless love and support gave me the strength and drive to finish. Finally, I am grateful to Dan for everything—I couldn’t have done any of this without you. This note is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol20/iss1/5 C05_WASSEL_NOTE_123009_FINAL (DO NOT DELETE) 12/30/2009 11:13:37 AM From Mbube to Wimoweh: African Folk Music in Dual Systems of Law Deborah Wassel* INTRODUCTION ............................................................................. 290 I. OVERVIEW OF COPYRIGHT PROTECTIONS: WESTERN VS. AFRICAN ......................................................... 294 A. Western Copyright (Statutory-Based Schemes)............ 294 B. Customary Law and African Culture............................ 296 1. Background on Customary Law............................ 296 2. Differences Between African and Western IP Ideology................................................................. 300 3. Customary Law in the Courts................................ 303 C. Statutory Protections: African and International......... 304 1. International Schemes ........................................... 305 2. National Schemes.................................................. 308 II. INADEQUATE EITHER WAY: ISSUES IN PURE SCHEMES OF LAW ........................................................ 311 A. Problems: Copyright Protections Arising Under Customary Law............................................................. 311 B. Problems: Under Statutory Schemes ............................ 318 III. RESOLUTION: A NEW DIRECTION FOR CUSTOMARY LAW COPYRIGHTS.......................................................................... 323 CONCLUSION................................................................................. 326 A PDF version of this Note is available online at http://iplj.net/blog/archives/ volumexx/book1. Visit http://iplj.net/blog/archives for access to the IPLJ archive. * J.D. Candidate, Fordham University School of Law, 2010; A.B., Dartmouth College, 2007. I would like to thank the incredible editors and staff of the IPLJ for their hard work, as well as Professor Tracy Higgins, without whose expertise this Note would not be possible. A special thanks to my parents and sister, whose endless love and support gave me the strength and drive to finish. Finally, I am grateful to Dan for everything—I couldn’t have done any of this without you. 289 C05_WASSEL_NOTE_123009_FINAL (DO NOT DELETE) 12/30/2009 11:13:37 AM 290 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:289 INTRODUCTION Solomon Linda was born in 1909 in South Africa, and grew up in Ladysmith, Zululand, a region located in South Africa.1 He “never learned to read or write.”2 He did, however, know how to sing in a high soprano voice,3 and after a childhood of singing with friends,4 he began singing to the local black workforce at various hostels and beer halls on the weekends.5 Linda’s style, which later became known as Mbube, a soprano voice sung over four-part harmonies, became extremely popular and widely imitated.6 In 1939, Linda recorded his locally popular song titled Mbube, the Zulu word for “lion,” which was inspired by his childhood as a cattle herder in the untamed hinterlands.7 The song was a huge hit.8 Mbube sold approximately 100,000 copies, and Solomon 9 Linda became a household name in South Africa. 1 Independent Lens, A Lion’s Trail, http://www.pbs.org/independentlens/ lionstrail/trail.html (last visited Sept. 18, 2009) [hereinafter A Lion’s Trail]. 2 Sharon LaFraniere, In the Jungle, the Unjust Jungle, a Small Victory, N.Y. TIMES, Mar. 22, 2006, at A1, available at http://www.nytimes.com/2006/03/22/international/ africa/22lion.html?r=1&scp=3&sq=solomon%20linda&st=cse. 3 Id. 4 A Lion’s Trail, supra note 1. 5 LaFraniere, supra note 2. 6 See id.; see also A Lion’s Trail, supra note 1. Mbube later transitioned into another style of Zulu a capella singing known as isicathamiya, which is characterized by a harmonious blend of voices and embodied most famously today by Ladysmith Black Mambazo. See Wikipedia, Isicathamiya, http://en.wikipedia.org/wiki/Isicathamiya (last visited Sept. 20, 2009). 7 See A Lion’s Trail, supra note 1; see also Rian Malan, In the Jungle, ROLLING STONE, May 25, 2000, at 54 (“It was a simple three-chord ditty with lyrics something along the lines of ‘Lion! Ha! You’re a lion!’ inspired by an incident in the Birds’ collective Zulu boyhood when they chased lions that were stalking their fathers’ cattle.”). 8 See A Lion’s Trail, supra note 1. To hear a sample of the 1939 recording, along with dozens of cover versions of the song, see YouTube, MBUBE, http://www.youtube.com/user/FLORENCOM (last visited Oct. 21, 2009). 9 See Malan, supra note 7. Malan wrote: In the jungle, the mighty jungle, the lion sleeps tonight. Griffith Motsieloa must have realized he’d captured something special, because that chunk of beeswax was shipped all the way to England and shipped back in the form of ten-inch 78-rpm records, which went on sale just as Hitler invaded Poland. Marketing was tricky, because there was hardly any black radio in 1939, but the song went out on “the re-diffusion,” a land line that pumped music, news and “native affairs” propaganda into black neighborhoods, and people began C05_WASSEL_NOTE_123009_FINAL (DO NOT DELETE) 12/30/2009 11:13:37 AM 2009 AFRICAN FOLK MUSIC IN DUAL SYSTEMS OF LAW 291 Soon after, American folk singer Pete Seeger discovered the song and, after mispronouncing the main refrain, covered it with his band, The Weavers, calling it Wimoweh10—and all with negligible compensation to Linda.11 There followed several different cover versions by different groups;12 in 1961, American songwriter George Weiss took Linda’s melody and added the lyrics, “In the jungle, the mighty jungle.”13 Weiss was “[a] civilized chap with a Juilliard degree, [and] he didn’t much like the primitive wailing,” but he recognized the enormous potential in Linda’s catchy refrain14 and dismantled Wimoweh to create his masterpiece.15 In Weiss’s version, “[t]he chant remained unchanged, but the melody—Solomon Linda’s miracle melody—moved to center stage, becoming the tune itself, to which the new words were sung: ‘In the jungle, the mighty jungle.’”16 This version was recorded by The Tokens and became 17 a world-wide hit. trickling into stores to ask for it. The trickle grew into a steady stream that just rolled on for years and years, necessitating so many re-pressings that the master disintegrated. By 1948, “Mbube” had sold in the region of 100,000 copies, and Solomon Linda was the undefeated and undefeatable champion of hostel singing competitions and a superstar in the world of Zulu migrants. Id. 10 See id. (“[H]e got out pen and paper and started transcribing the song, but he couldn’t catch the words through all the hissing on the disc. The Zulus were chanting, ‘Uyimbube, uyimbube,’ but to Pete it sounded like awimboowee, or maybe awimoweh, so that’s how he wrote it down.”). 11 See A Lion’s Trail, supra note 1. 12 See, e.g., Malan, supra note 7 (“‘Wimoweh’ lived on, bewitching jazz ace Jimmy Dorsey, who covered it in 1952, and the sultry Yma Sumac, whose cocktail-lounge version caused a minor stir a few years later. Toward the end of the decade, it was included on Live From the Hungry I, a monstrously popular LP by the Kingston Trio that stayed on the charts for more than three years (178 weeks), peaking at Number Two. By now, almost everyone in America knew the basic refrain . .”). 13 A Lion’s Trail, supra note 1; Malan, supra note 7 (“George Weiss took ‘Wimoweh’ home with him and gave it a careful listen . [E]veryone agrees . that: ‘The Lion Sleeps Tonight’ was a reworking of ‘Wimoweh,’ which was a copy of ‘Mbube.’ Solomon Linda was buried under several layers of pop-rock stylings, but you could still see him beneath the new song’s slick surface . .”). 14 Malan, supra note 7. 15 Id. 16 Id. 17 A Lion’s Trail, supra note 1; see also Malan, supra note 7. Malan wrote: C05_WASSEL_NOTE_123009_FINAL (DO NOT DELETE) 12/30/2009 11:13:37 AM 292 FORDHAM INTELL. PROP.