Sometimes I avoid writing about intellectual property, just because so much of what is said about it is nonsense, so nonsense from this Tohu Bohu would be surplus. Now and then, though, something is brought to my attention that just baffles me.
For background. I don’t believe in intellectual property. The idea that one can own ideas is ridiculous on its face, and the idea that expressions of ideas are somehow different from ideas is one I can’t find a way to accept. It’s true that the pretense of intellectual property (not the phrase itself, but the legal fiction) served surprisingly well in the crude capitalism of the eighteenth and nineteenth centuries, much better than my understanding of the model would suggest. It also seems to be the case that the pretense is not working well in this age of corporate capitalism. I do not have any particular ideas for replacing it, though, at least not within the structures of corporate capitalism itself. I have some ideas about replacing that, but then intellectual property is the least of the reasons for doing so, and the least of the problems of replacing it.
So. In this morning’s New York Times, there’s a fascinating article by Sharon LaFraniere called In the Jungle, the Unjust Jungle, a Small Victory about the history of the song I know as “The Lion Sleeps Tonight”. The article (and accompanying sound clips) traces the song from a recording by Solomon Linda and the Original Evening Birds to its frequent use in movies and television today. Various people added to it, in a variety of ways, adding melodic bits, adding English lyrics, changing the rhythm, and generally treating it like a folk song is treated. I would have liked more analysis, as well as more interviews with the various people who had a hand in the various version. Why was the doo-wop version so popular? How did Disney miss the chance to return the chant from the nonsense “Wemoweh” to the Zulu “Mbumbe”? Why did the song’s popularity outlive the popularity of falsetto singing? More than once?
Rather than go in to all of that, the story of the article is the story of how Mr. Linda’s family received only a small amount of money from the sale of the copyright, and only intermittently received royalty payments. Mr. Linda died poor, in 1962, and his family remained poor until I suppose 1991, when money from The Lion King started filtering through to them. The crumbs from Disney’s table must have been a heck of a bounty, to them, although of course in Disney’s terms it was a good deal less than they paid people to sweep the floors (a job Mr. Linda got from his record company forty years previously). Eventually, Mr. Linda’s descendants sued, and now they aren’t poor anymore. Hurrah! A triumph for rightness!
Um, hunh?
I mean, when they bring up that one of Mr. Linda’s daughters died of AIDS, unable to afford treatment, I am outraged. As outrageous as that is, though, it can’t quite keep me to being further outraged by the idea that Ms. Linda should not have died of neglect and poverty because her father wrote a pretty tune once. Really, all those other people who died of AIDS in Africa in the nineties, should they have had one of their parents write a pretty tune before they were born? What were they thinking? I have no sympathy for them at all. Ms. Linda clearly had far more right to treatment than they did.
Look, I was going to write about my bewilderment with the whole thing—Mr. Linda sold his copyright for a mess o’ pottage in 1952, very sad, but if there is ownership, then he doesn’t own it anymore. I’ll leave out that the family sold the copyright again in the eighties, apparently the victim of fraud, but then apparently also the perpetrators of fraud, since they didn’t own it anymore themselves. But the law is complicated (and bad), and perhaps there is some sense in which it makes sense that they own it. I mean, if a song is property, like a car, then whoever buys it, owns it, right? But it isn’t, of course. Except when it is.
And then there’s the strange part where the heroes essentially brought a lawsuit without merit in order to blackmail Disney against bad publicity, and of course to exploit the fact that Disney doesn’t really want to go to court and argue that intellectual property is complicated and byzantine and so we shouldn’t punish infringers in cases where copyright ownership is unclear. And they really don’t want to win that case. So the Linda family goes to Disney and says ‘Nice intellectual property there, shame if anything were to happen to it’, and Disney gives them a million or so, and Hooray for the Lindas!
No, the thing that really seemed strange to me is the sentence “By all rights, Mr. Linda should have been a rich man.” Hunh? Mr. Linda wrote a lovely song, yes, and certainly there have been lots of people who got rich over the years who deserved it less, but what if “Mbumbe” hadn’t been taken up by Mr. Seeger, or by the Kingston Trio, or by Mr. Weiss and the Tokens, or by Disney? Would some right have been violated? Does Mr. Seeger not deserve, by this measure, to be a rich man? Not that he isn’t, for all I know, but if Mr. Seeger hadn’t pushed the song, Disney wouldn’t have used it, and there would be no money for Mr. Linda’s children. Or perhaps if Mr. Weiss had not re-written the melody, and added words, and totally transformed the song—is Mr. Weiss a rich man? Does he have the right to be?
Look, I think the story is fascinating, and I do think Mr. Linda got a raw deal. I’m sure, by the way, he did better than he would have done had he not written “Mbumbe”, but perhaps that’s irrelevant. It just seems strange to me that the writer assumes, and assumes that her readers assume, that Mr. Linda had some right to riches, just because he wrote a pretty tune.
chazak, chazak, v’nitchazek,
-Vardibidian.
In a lottery society, we all want to become winners. When we win, we want to believe that we earned that win. And we want to believe that other winners earned their wins because that will justify our pride when we win.
Currently, creating things is a lottery ticket. Mr. Linda bought one of those tickets, and the ticket hit it big a long time after he sold the ticket. Yet we root for Mr. Linda because we want our own tickets to retain value even though we can’t afford to hold onto them.
There’s a movement to get groups of visual artists together to pool some works to hold for a long time and sell later. This averages the risks and rewards of creating visual art, where some small percentage will be much more valuable later depending on which artists become most desirable to collect. Leaving aside that odd conflation of art and artist, I think it’s interesting to imagine this model applied to other creative fields. Writers could do the same, not by holding back pieces of writing, but by agreeing to pool revenues from film rights (for example). Could songwriters do similarly?