Traditional songs must be seen as national assets

2012-08-11 13:53

Proprietary rights is a contentious issue in South Africa. It is contested over a number of key assets.

The most prominent and recurring contest has been over land, which is yet to be resolved. We have resolved ownership of natural minerals, though, through legislation that grants ownership to the state.

Another dispute has arisen over traditional songs.

It involves the directors of the musical Umoja, on the one hand; and the recording companies Gallo and Sony, on the other.

The case dates back to 2007 and followed Umoja’s performances of three songs: Tula Baba, Unomathemba and Siwelile.

Gallo and Sony claim ownership of the songs and believe they are entitled to 8% of Umoja’s takings and any other income generated by the songs.

Created in 1998 by Todd Twala and Thembi Nyandeni, Umoja gained local and international acclaim. By 2007, it had toured more than 40 countries and grown into three 40-member casts.

The last five years, however, saw Umoja’s fortunes dipping.

Instead of spending time at performances, its directors have been in and out of court, disputing Gallo/Sony’s claims.

They insist that the songs are actually traditional and in the public domain. Over five years, Umoja claims to have spent R6 million on legal fees. The case resumes on September 25 2012.

The arguments and evidence forwarded in the course of this legal battle centre on the origin and arrangement of the songs.

Gallo anchors its claim of ownership of Unomathemba on the fact that it recorded the song in 1973, based on a composition by Ladysmith Black Mambazo’s Joseph Tshabalala.

Umoja challenges Tshabalala’s claim to sole ownership of the song, because Unomathemba, they contend, predates Gallo’s recording.

According to the directors of Umoja, there are various older, recorded versions of the song, with the earliest dating as far back as 1956.

Implicit in this contention is that even what Ladysmith Black Mambazo claim to be their unique arrangement of the song could have been influenced by many others that preceded it.

Claims of ownership based on arrangement are even more interesting. Umoja secured the services of a musicologist, Claire Loveday, to prove that their version of Tula Baba, an African lullaby, which it recorded in 2002, is different to the 1963 version that Gallo recorded.

Loveday indeed discerned a difference in the arrangements: one accentuated the individual voices that made up the ensemble, which is characteristic of Western tradition, while the other blended the individual voices into one, as is typical of African tradition.

But both arrangements are a lullaby, with the only difference being in the level of accentuation of ­individual voices.

No one, however, claims to have composed the original lullaby, Tula Baba.

It’s one of the songs that African mothers have always sung to their children as they put them to sleep.

It has been passed from one generation to another.

Tula Baba is a traditional lullaby. What is baffling is how people are now trying to profit from something they did not create.

This may seem to be just a music dispute, but it may well define who we are as a nation.

It’s not the first instance of its kind, where an entity that has historically been considered collectively owned, was privatised and sold for
personal profit.

The original document of the historic Freedom Charter, for example, was put on auction in London.

It was being sold by former president of the South African Congress of Trade Unions, Leon Levy.

He did not think he had a moral obligation to return this public document to the new South Africa, he thought he had a right to profit from it, and he didn’t seem to mind that in selling it off to a private owner it could be permanently lost to the South African public.

Fortunately, it was bought by a South African-born businessperson, who returned it to the country.

It is now urgent that legislation be passed to regulate the handling of public artwork and artifacts.

Quite clearly, some songs are a cultural heritage.

No individual can claim to have composed them.

To insist on personal gain suggests that an artwork is someone’s creation, for which they deserve reward.

But traditionalsongs should belong to the public in the same way that minerals are now public assets.

They are a public endowment and require legislative protection.

Each of us should be equally free to make a living off such songs in affirmation of our equal ownership.

» Mancotywa is chief executive of the National Heritage Council

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