Copyright Bill a slap in the face for widows and orphans
Gary Moore
2 November 2015
First, how the Empire struck back for a Zulu musician’s descendants
The popular songs “Wimoweh” and “The Lion Sleeps Tonight” have been recorded by artists in many countries. They are derived from the song “Mbube” (“the lion” in Zulu) by migrant worker Solomon Linda, who with his group Evening Birds recorded it in 1939 at Gallo studios in Johannesburg. Linda assigned his copyright in “Mbube” to the studio in 1952 for ten shillings. The song was reworded and repackaged in the U.S. in the 1950s and ’60s, first as “Wimoweh” and then “The Lion Sleeps Tonight”. Two American music publishers purported to hold copyright in those songs. Linda died in poverty in 1962.
The inspirational story of the fight to secure copyright royalties for Linda’s poverty-stricken widow and daughters is now widely known since Rian Malan’s enthralling account in Rolling Stone magazine in May 2000. Malan’s efforts, and Johannesburg lawyer Hanro Friedrich’s unpaid agitation on the family’s behalf, prompted Gallo to retain specialist copyright attorneys Spoor & Fisher to do everything possible, both locally and abroad, to secure financial benefits for the Linda family from the international revenues generated by “Wimoweh” and “The Lion Sleeps Tonight”.
Dr Owen Dean at Spoor & Fisher knew that the Imperial Copyright Act 1911 of the United Kingdom, besides saying that copyright in a work lasted for 50 years after the author’s death and was assignable, also contained an unusual reversionary-interest proviso that assignment of copyright by the author would lapse 25 years after his death and the copyright would revert to the executor of his estate. This Act is known as the Imperial Copyright Act because it extended to British colonies. Autonomous dominions (including Canada and South Africa) could decide to adopt the Act, which they did. South Africa passed a Copyright Act in 1916 adopting the Imperial Act.
South Africa’s successive Copyright Acts of 1965 and 1978 preserved the ownership, duration and existence of copyright under the prior legislation. The result (thanks ultimately to the reversionary-interest proviso in the Imperial Copyright Act 1911) was that copyright in “Mbube” reverted, 25 years after Solomon Linda’s death in 1962, to his deceased estate in 1987.
(The American publisher who held rights in “Wimoweh” purported to obtain an assignment from Linda’s daughters in 1992 of their rights in “Mbube”, In 1992, though, the daughters had nothing they could validly give. An executor of Linda’s estate had not formally assigned copyright to them in writing and the copyright was still part of his estate.)
Moreover, research disclosed that not only South Africa, but also the United Kingdom and other imperial possessions and dominions had preserved the 1911 Imperial Copyright Act’s reversionary interest in their copyright statutes. So Linda’s executor could enforce the copyright in “Mbube” in any part of the former British Empire, until it expired 50 years after his death, in 2012. Dr Dean approached the Magistrate of Johannesburg, who appointed accountant Stephanus Griesel as executor. Dr Dean has documented the facts in a series of articles, most noteworthy his lucid and absorbing account “Stalking the Sleeping Lion” in the attorneys’ magazine De Rebus in July 2006.
Who to sue? A defendant would have to be in the former Empire. The U.S. would not do. Fortuitously, Walt Disney had just released worldwide the animated motion picture The Lion King, which included a version of “The Lion Sleeps Tonight”. Copyright in The Lion King was held by a Disney company whose main place of business and head office were in America, so a South African court would normally have no jurisdiction over it. But the company had many registered trademarks in South Africa for the names “Mickey Mouse”, “Donald Duck” and the like. The executor got a court order in July 2004 attaching this property in order to found jurisdiction in South African courts against Disney in an action to be instituted by the executor for infringing copyright in “Mbube”. A court application by the Disney company to set aside the attachments failed; Disney’s technical arguments were dismissed.
Action was instituted and set down for trial in February 2006. Shortly before trial, Disney and the American music publisher who held the ultimate copyright in “The Lion Sleeps Tonight” started negotiating with the executor. Settlement was reached: Solomon Linda would in future be designated a co-composer of “The Lion Sleeps Tonight”, which was acknowledged as being a derivation of “Mbube”. The American publisher would pay compensation to the estate for past uses of “The Lion Sleeps Tonight” and royalties for all future worldwide uses of the song. The executor created a trust to administer the funds flowing to the heirs. The litigation was withdrawn and the estate’s claims against the publisher and its licensees were waived.
Copyright can be inherited by widows and orphans under Copyright Act 1978
Our Copyright Acts of 1965 and 1978 did not recreate the Imperial Act’s reversionary interest in works created after 1965. But they repeat that the duration of copyright is the life of the author plus fifty years after the author’s death. The current Act of 1978 says copyright can be transferred as movable property by assignment or by will. And if a copyright owner dies “intestate” (without a will), his copyright passes “by operation of law” (via his executor) to his heirs on intestacy, being his spouse and/or descendants or other close relatives in order of priority.
The novelist, Anthony Burgess, recounted how he collapsed with a suspected brain tumour while a Colonial Service teacher in Brunei, and his fear of an early death prompted him to write in earnest in order to support his first wife after his death (in the result he survived her). He wrote prolifically, authoring A Clockwork Orange among others. His second wife (who survived him) drove a hard bargain with publishers on behalf of her husband’s writing (she successfully sued the producers of the Stanley Kubrick film A Clockwork Orange for 10% of the profits).
Our Copyright Amendment Bill would prevent authors’ heirs from inheriting copyright
South Africa’s 2015 draft Copyright Amendment Bill was published in July for public comment. The Bill is aimed at amending the Copyright Act of 1978 in various respects. The period for comment on the draft has ended.
The draft Bill seeks, casually and almost in passing, to abolish the inheritance of an author’s copyright by his or her heirs. Clause 25 of the Bill would insert in section 21 of the Copyright Act a subsection that the ownership of any copyright whose owner cannot be located, is unknown or “is deceased,” shall “vest in the State”.
This clause would, at a stroke of a pen, revoke the present longstanding rule that copyright can be transferred by its owner as movable property by will or, if he dies without a will, then to his heirs by operation of law.
This breath-taking new provision would presumably only apply to copyright in works created after the Amendment Bill is enacted and comes into operation. It does not expressly apply retrospectively to existing copyright. No clear reason for treating future works differently from past works is discernible. Such unfair and discriminatory treatment would be an unjustifiable limitation on everyone’s constitutional right to the equal benefit of the law.
Copyright is regarded as a species of movable property. The Constitutional Court has said that trademarks albeit incorporeal are deserving of constitutional protection as a type of property. The Bill of Rights says property can be expropriated for a public purpose or in the public interest, subject to compensation. Yet no clear public purpose or public interest can be detected behind this proposal for vesting the ownership of copyright of deceased owners in the State. No provision is made for compensation.
The Copyright Review Commission Report of 2011 did not recommend vesting the ownership of copyright of deceased owners in the State. Indeed the Commission’s terms of reference did not extend that far. The Commission’s Report says it was informed that, apart from the Linda case, no attempt was being made to collect royalties on behalf of heirs of South African composers to whom the reversionary-interest proviso in the Imperial Copyright Act applied, and the Commission recommended that this omission be rectified. If the Bill’s proposal for vesting copyright of deceased owners in the State is intended as part of a scheme to address the mischief identified by the Commission, it is too blunt an instrument and covers too wide a field.
Nor did the 2013 Draft National Policy on Intellectual Property propose vesting deceased owners’ copyright in the State. On the contrary, the Draft Policy stated that copyright “must always reside with the original owner unless they are sold/transferred/assigned legally”.
The 2015 draft Bill in clause 2 would insert in section 3(3) of the Act a paragraph that the term of copyright vesting in the State because the owner cannot be located, is unknown or is dead “shall be perpetual”. This is at odds with the observation in the 2013 Draft National Policy that “There is no need to extend the 50-year period after the death of an author, since this is enough to recoup the benefits before it goes [in]to the public domain.”
Commentators have criticised many aspects of the draft Bill, in written submissions to the Department of Trade and Industry; at the “Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform conference” in Pretoria in August; and in the media. Fortunately the Bill is unlikely to proceed in its present form.
Author: Gary Moore is a consultant to the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the FMF.
The popular songs “Wimoweh” and “The Lion Sleeps Tonight” have been recorded by artists in many countries. They are derived from the song “Mbube” (“the lion” in Zulu) by migrant worker Solomon Linda, who with his group Evening Birds recorded it in 1939 at Gallo studios in Johannesburg. Linda assigned his copyright in “Mbube” to the studio in 1952 for ten shillings. The song was reworded and repackaged in the U.S. in the 1950s and ’60s, first as “Wimoweh” and then “The Lion Sleeps Tonight”. Two American music publishers purported to hold copyright in those songs. Linda died in poverty in 1962.
The inspirational story of the fight to secure copyright royalties for Linda’s poverty-stricken widow and daughters is now widely known since Rian Malan’s enthralling account in Rolling Stone magazine in May 2000. Malan’s efforts, and Johannesburg lawyer Hanro Friedrich’s unpaid agitation on the family’s behalf, prompted Gallo to retain specialist copyright attorneys Spoor & Fisher to do everything possible, both locally and abroad, to secure financial benefits for the Linda family from the international revenues generated by “Wimoweh” and “The Lion Sleeps Tonight”.
Dr Owen Dean at Spoor & Fisher knew that the Imperial Copyright Act 1911 of the United Kingdom, besides saying that copyright in a work lasted for 50 years after the author’s death and was assignable, also contained an unusual reversionary-interest proviso that assignment of copyright by the author would lapse 25 years after his death and the copyright would revert to the executor of his estate. This Act is known as the Imperial Copyright Act because it extended to British colonies. Autonomous dominions (including Canada and South Africa) could decide to adopt the Act, which they did. South Africa passed a Copyright Act in 1916 adopting the Imperial Act.
South Africa’s successive Copyright Acts of 1965 and 1978 preserved the ownership, duration and existence of copyright under the prior legislation. The result (thanks ultimately to the reversionary-interest proviso in the Imperial Copyright Act 1911) was that copyright in “Mbube” reverted, 25 years after Solomon Linda’s death in 1962, to his deceased estate in 1987.
(The American publisher who held rights in “Wimoweh” purported to obtain an assignment from Linda’s daughters in 1992 of their rights in “Mbube”, In 1992, though, the daughters had nothing they could validly give. An executor of Linda’s estate had not formally assigned copyright to them in writing and the copyright was still part of his estate.)
Moreover, research disclosed that not only South Africa, but also the United Kingdom and other imperial possessions and dominions had preserved the 1911 Imperial Copyright Act’s reversionary interest in their copyright statutes. So Linda’s executor could enforce the copyright in “Mbube” in any part of the former British Empire, until it expired 50 years after his death, in 2012. Dr Dean approached the Magistrate of Johannesburg, who appointed accountant Stephanus Griesel as executor. Dr Dean has documented the facts in a series of articles, most noteworthy his lucid and absorbing account “Stalking the Sleeping Lion” in the attorneys’ magazine De Rebus in July 2006.
Who to sue? A defendant would have to be in the former Empire. The U.S. would not do. Fortuitously, Walt Disney had just released worldwide the animated motion picture The Lion King, which included a version of “The Lion Sleeps Tonight”. Copyright in The Lion King was held by a Disney company whose main place of business and head office were in America, so a South African court would normally have no jurisdiction over it. But the company had many registered trademarks in South Africa for the names “Mickey Mouse”, “Donald Duck” and the like. The executor got a court order in July 2004 attaching this property in order to found jurisdiction in South African courts against Disney in an action to be instituted by the executor for infringing copyright in “Mbube”. A court application by the Disney company to set aside the attachments failed; Disney’s technical arguments were dismissed.
Action was instituted and set down for trial in February 2006. Shortly before trial, Disney and the American music publisher who held the ultimate copyright in “The Lion Sleeps Tonight” started negotiating with the executor. Settlement was reached: Solomon Linda would in future be designated a co-composer of “The Lion Sleeps Tonight”, which was acknowledged as being a derivation of “Mbube”. The American publisher would pay compensation to the estate for past uses of “The Lion Sleeps Tonight” and royalties for all future worldwide uses of the song. The executor created a trust to administer the funds flowing to the heirs. The litigation was withdrawn and the estate’s claims against the publisher and its licensees were waived.
Copyright can be inherited by widows and orphans under Copyright Act 1978
Our Copyright Acts of 1965 and 1978 did not recreate the Imperial Act’s reversionary interest in works created after 1965. But they repeat that the duration of copyright is the life of the author plus fifty years after the author’s death. The current Act of 1978 says copyright can be transferred as movable property by assignment or by will. And if a copyright owner dies “intestate” (without a will), his copyright passes “by operation of law” (via his executor) to his heirs on intestacy, being his spouse and/or descendants or other close relatives in order of priority.
The novelist, Anthony Burgess, recounted how he collapsed with a suspected brain tumour while a Colonial Service teacher in Brunei, and his fear of an early death prompted him to write in earnest in order to support his first wife after his death (in the result he survived her). He wrote prolifically, authoring A Clockwork Orange among others. His second wife (who survived him) drove a hard bargain with publishers on behalf of her husband’s writing (she successfully sued the producers of the Stanley Kubrick film A Clockwork Orange for 10% of the profits).
Our Copyright Amendment Bill would prevent authors’ heirs from inheriting copyright
South Africa’s 2015 draft Copyright Amendment Bill was published in July for public comment. The Bill is aimed at amending the Copyright Act of 1978 in various respects. The period for comment on the draft has ended.
The draft Bill seeks, casually and almost in passing, to abolish the inheritance of an author’s copyright by his or her heirs. Clause 25 of the Bill would insert in section 21 of the Copyright Act a subsection that the ownership of any copyright whose owner cannot be located, is unknown or “is deceased,” shall “vest in the State”.
This clause would, at a stroke of a pen, revoke the present longstanding rule that copyright can be transferred by its owner as movable property by will or, if he dies without a will, then to his heirs by operation of law.
This breath-taking new provision would presumably only apply to copyright in works created after the Amendment Bill is enacted and comes into operation. It does not expressly apply retrospectively to existing copyright. No clear reason for treating future works differently from past works is discernible. Such unfair and discriminatory treatment would be an unjustifiable limitation on everyone’s constitutional right to the equal benefit of the law.
Copyright is regarded as a species of movable property. The Constitutional Court has said that trademarks albeit incorporeal are deserving of constitutional protection as a type of property. The Bill of Rights says property can be expropriated for a public purpose or in the public interest, subject to compensation. Yet no clear public purpose or public interest can be detected behind this proposal for vesting the ownership of copyright of deceased owners in the State. No provision is made for compensation.
The Copyright Review Commission Report of 2011 did not recommend vesting the ownership of copyright of deceased owners in the State. Indeed the Commission’s terms of reference did not extend that far. The Commission’s Report says it was informed that, apart from the Linda case, no attempt was being made to collect royalties on behalf of heirs of South African composers to whom the reversionary-interest proviso in the Imperial Copyright Act applied, and the Commission recommended that this omission be rectified. If the Bill’s proposal for vesting copyright of deceased owners in the State is intended as part of a scheme to address the mischief identified by the Commission, it is too blunt an instrument and covers too wide a field.
Nor did the 2013 Draft National Policy on Intellectual Property propose vesting deceased owners’ copyright in the State. On the contrary, the Draft Policy stated that copyright “must always reside with the original owner unless they are sold/transferred/assigned legally”.
The 2015 draft Bill in clause 2 would insert in section 3(3) of the Act a paragraph that the term of copyright vesting in the State because the owner cannot be located, is unknown or is dead “shall be perpetual”. This is at odds with the observation in the 2013 Draft National Policy that “There is no need to extend the 50-year period after the death of an author, since this is enough to recoup the benefits before it goes [in]to the public domain.”
Commentators have criticised many aspects of the draft Bill, in written submissions to the Department of Trade and Industry; at the “Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform conference” in Pretoria in August; and in the media. Fortunately the Bill is unlikely to proceed in its present form.
Author: Gary Moore is a consultant to the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the FMF.