Mock Trial Activity

Introduction

Recommended class size: Two to four students per side

Approximate run time: Each mock trial requires about 15 minutes in class and about 30 minutes of preparation for the students

Short Description

In this activity, students represent plaintiffs and the defense in both real and hypothetical trials around music copyright. Students can either prepare and research during class time or they can prepare them outside of class to present their case in class. There is a template for the “court,” and students on other cases serve as the jury.

The three cases included here are

• Enigma’s “Return to Innocence”;
• “Deep Forest”; and
• “The Lion Sleeps Tonight.”

Mock Trial

We are going to run a mock trial on these three cases in class. As much as you can, try to write from the perspective of your clients.

Trial Structure

• Opening Statement by the Plaintiff
• Opening Statement by the Defense
• Presenting of Evidence by the Plaintiff
• Presenting of Evidence by the Defense
• Rest (Time to prepare closing arguments)
• Closing argument of plaintiff
• Closing argument of defense
• Jury Deliberations

“Return to Innocence”

Plaintiff: Kuo Ying-nan (also known as Difang) and Kuo Shin-chu (also known as Ignay).

Defense: Enigma and Michael Cretu

Case: The Kuos allege that their recording of the “Song of Joy” was used without the proper permissions by the group Enigma.

Background: In 1978, the Kuos participated in a project to record Amis music along with other Amis musicians and culture bearers. The Amis are among nine Indigenous groups in Taiwan. Hsu Tsang-houei recorded the songs, and they were told the songs were for research and teaching (Guy 2002: 201).

In 1988, the Kuos and other Taiwanese Indigenous musicians went to France. The project was sponsored by the French and Chinese government and arranged by the Maison des Cultures du Monde––a part of the National Education Ministry in France. There were no signed contracts for recordings at this event, although the performances were recorded “in the interest of creating an archival record of festival events” (Guy 2002: 201). The Maison des Cultures then released an album of these recordings; however, since the original recording by the Kuos had interference, the creators of the album used the earlier recording collected by the researcher. The album had five recordings of the Amis on it, but only one recording was from their time in France; the others were from the earlier research recordings (Guy 2002: 202).

The Kuos were therefore surprised then to hear their voices appear on the Enigma song “Return to Innocence” on the album Cross of Changes (1993) released by the record label EMI/Capitol Records. The album sold between five and seven million copies. The song became a promotional song of the 1996 Olympic Games that were held in Atlanta, Georgia. The band performing it, Enigma, was a German band spearheaded by Michael Cretu. The album on which “Return to Innocence” appears, lists Michael Cretu as the sole composer of the music. Cretu paid $6,000 to Maison des Cultures du Monde to use this recording of the Kuos (Guy 2002:202).

Among the details of the April 19, 1993, contract between Cretu and Maison des Cultures du Mond, it is known that:

Substantial amounts of money were paid to Maison des Cultures du Monde by Michael Cretu for the world-wide exploitation as to time unlimited regarding: a) the use of these samples in a movie soundtrack; b) the use of these samples in a record production and all other possibilities of exploitation. In point 7 of the contract between Michael Cretu and Maison des Cultures du Monde, Maison des Cultures du Monde explicitly state that all claims to them as well as the artists concerned have been transferred. (Virgin’s Munich Office in Guy 2002:202)

At Question: Did Michael Cretu violate the rights of the Kuos in his use of the recording?

Planning a legal strategy

From Nancy Guy (2002:196):

“While there are international copyright treaties and conventions, "there is no such thing as an 'international copyright.'" United States copyright laws--which are among the most powerful in the world, since about 50 percent of all sales of prerecorded music worldwide are made in this country offer indigenous musicians little protection against the hunting and gathering activities of elite recording artists and multinational corporations. In her overview of these copyright laws pertaining to music, lawyer Sherylle Mills noted that a musical piece must meet three criteria in order for someone to be able to claim its copyright (1996:63):

• It must have a specific "author;" an author is defined as "the originator" or "he to whom anything owes its origin";
  • DEFENSE: How would you make the case the Michael Cretu is indeed the author?
  • PLAINTIFF: How would you make the case that the Kuos retain the right to their songs? HINT: Consider looking at Anthony Seeger’s “Who Owns Music and Why You Should Care” (https://www.youtube.com/watch?v=5tSsQls1d8A&t=225s), and pay special attention to what he says about Indigenous perspectives on ownership.
• It must have a tangible form; its "physical rendering" may include a piece of notation, a tape recording, or some other tangible form;
  • DEFENSE: What are the physical lines of evidence that you can draw on to defend the actions of Michael Cretu?
  • PLAINTIFF: What are the physical forms of evidence to support the Kuos? Are there any other forms of evidence that you can draw on?
• It must be "original." Any work failing to possess one of these qualities is deemed to be in the "public domain"; in other words, anyone can use it for free.
  • DEFENSE: How might you defend Michael Cretu’s use of this work? HINT: Think of how folk music has been defined.
  • PLAINTIFF: How might you argue that this work is original to the Kuos and not in the public domain?

Recording: "Song of Joy": https://www.youtube.com/watch?v=8U07AkXl0LA

Recording: Enigma “Return to Innocence” https://www.youtube.com/watch?v=Rk_sAHh9s08

Sources Cited

Guy, Nancy. 2002. “Trafficking in Taiwan Aboriginal Voices.” In Handle with Care: Ownership and Control of Ethnographic Materials, edited by Sjoerd R. Jaarsma, 195–209. Pittsburgh: University of Pittsburgh Press.

Mills, Sherylle. 1996. “Indigenous Music and the Law: An Analysis of National and International Legislation.” Yearbook for Traditional Music 28:57–86.

“Deep Forest”

Plaintiff: Afunakwa

Defense: Eric Moquet and Michel Sanchez for Deep Forest (Music Duo)

Case: Afunakwa seeks royalties for the sampling of her voice in the popular recording Deep Forest.

Background: In 1969 ethnomusicologist Hugo Zemp recorded the song “Rorogwela” ––a Baegu lullaby from Northern Malaita. This song was subsequently released on a UNESCO collection in 1973 on LP titled Solomon Islands: Fateleka and Baegu Music from Malaita. These collections received limited royalties and sales (Feld 2000:154).

In 1992, The song “Rorogwela” was integrated into a song that quickly became a hit for Eric Moquet and Michel Sanchez. With the backing of Celine Music, a division of Sony Music, the song “Sweet Lullaby” on the Deep Forest album bearing the name of the duo. The song integrated Afunakwa’s version of “Rorogwela.” According to ethnomusicologist Steven Feld:

The recording also includes synthesizer accompaniments and interludes of digital samples from Central African forest water- splashing games and vocal yodels. On the first chorus Afunakwa’s voice is solo; on the second chorus she is backed by digital voice multiplication and a studio chorus, creating a dense “We are the World” vocal effect; on the third chorus Afunakwa’s voice disappears into the linguistic indistinction of an ensemble singing her lullaby. Through this progression one hears how what was once distinctly Afunakwa’s world is now up for a new sharing, becoming, ultimately, a world where her voice is no longer necessary to her imagined presence.

In the liner notes to Boheme, their 1995 Grammy award–winning CD, Deep Forest refer to the sampling of “native melodies” as the use of “raw material, an opportunity to cross and blend.” Of their relation to these “native melodies” on their first recording, their liner notes say: “Deep Forest is the respect of this tradition which humanity should cherish as a treasure which marries world harmony, a harmony often compromised today. That’s why the musical creation of Deep Forest has received the support of UNESCO and of two musicologists, Hugo Zempe [sic] and Shima [sic] Aron [sic], who collected the original documents.”

The second reference here is to Simha Arom, another CNRS ethnomusicologist, whose recordings of Central African pygmy music are sampled on many of Deep Forest’s tracks. In fact much of the music on Deep Forest involves pygmy references, and the theme of the African rain forest and its peoples is announced strongly in the CD’s music and packaging. Indeed, the introductory song, also titled “Deep Forest,” begins with a very deep and resonant voice that announces (in English): “Somewhere deep in the jungle are living some little men and women. They are your past. Maybe they are your future.” (Feld 2000:156)

The Deep Forest albums became an international sensation and sold over 10 million copies. Hugo Zemp, who made the original recordings, shared that he gave permission to use West African UNESCO recordings, he did not give permission for the use of “Sweet Lullaby” or music from the Solomon Island recordings (2000:157). Zemp says he was led to believe that the recordings would be used for "The Day of the Earth." Zemp alleges that Celine Music “misled Beby to believe that the recording was a limited release for a noncommercial purpose, comparable to other UNESCO recordings” (Feld 2000:158). In 1996, Zemp denounced Deep Forest for using his name and requested that they compensate the Baegu for using the song “Rorogwela.”

The defendants argue that they had authorization to use the recording from UNESCO (distributed by Auvidis).

At Question: Should Afunkawa receive royalties for the sampling of her music in this song?

Planning a legal strategy

From Nancy Guy (2002:196)

“While there are international copyright treaties and conventions, "there is no such thing as an 'international copyright.'" United States copyright laws--which are among the most powerful in the world, since about 50 percent of all sales of prerecorded music worldwide are made in this country offer indigenous musicians little protection against the hunting and gathering activities of elite recording artists and multinational corporations. In her overview of these copyright laws pertaining to music, lawyer Sherylle Mills noted that a musical piece must meet three criteria in order for someone to be able to claim its copyright (1996, 63):

• It must have a specific "author;" an author is defined as "the originator" or "he to whom anything owes its origin";
  • DEFENSE: How would you make the case the that Deep Forest is the creator of this work
  • PLAINTIFF: Think back to when we were talking about Native America and Indigenous perspectives on authorship. How would you make the case that Afunkawa retains the rights to her song?
• It must have a tangible form; its "physical rendering" may include a piece of notation, a tape recording, or some other tangible form;
  • DEFENSE: What are the physical lines of evidence that you can draw on to defend the actions of Deep Forest?
  • PLAINTIFF: What are the physical forms of evidence to support Afunkawa? Are there any other forms of evidence that you can draw on?
• It must be "original." Any work failing to possess one of these qualities is deemed to be in the "public domain"; in other words, anyone can use it for free.
  • DEFENSE: How might you defend Deep Forest’s use of this work? HINT: Think of how folk music has been defined
  • PLAINTIFF: How might you argue that this work is original to Afunkawa and not in the public domain?

Music Examples

“Rorogwela” Solomon Islands: https://www.youtube.com/watch?v=eGjgLrWbIfQ from Solomon Islands: Fataleka and Baegu Music from Malaita

“Sweet Lullaby” Deep Forest: https://www.youtube.com/watch?v=lIF5EEneWEU

Works Cited

Feld, Steven. 2000. “A Sweet Lullaby for World Music.” Public Culture 12 (1): 145–71.

Guy, Nancy. 2002. “Trafficking in Taiwan Aboriginal Voices.” In Handle with Care: Ownership and Control of Ethnographic Materials, edited by Sjoerd R. Jaarsma, 195–209. Pittsburgh: University of Pittsburgh Press.

“The Lion Sleeps Tonight”

Plaintiff: The Linda Family

Defense: David Weiss

Case: The Linda family did not receive royalties for the use of Solomon Linda’s composition popularly known as “The Lion Sleeps Tonight.”

Background: In the mid-1930s, a musical style known as imbube emerged in South Africa.

The artist, Solomon Popoli Linda, was born in 1909, which was home to many Zulu migrants (Erlmann 1990: 210). In the 1930s, Solomon worked in a furniture store and sang with a choir called the Evening Birds. It was during this time where he wrote the song. It was originally recorded in 1939 on Gallo Records. Since then, versions of the song have been played by The Tokens, The Weavers, Pete Seeger, and many other popular music artists. In 1948, the song was a hit in South Africa, selling about 100,000 copies. Linda saw very little financial gains from these sales as he sold the rights to Eric Gallo for approximately ten shillings once the recordings were completed (Malan 2000). As described by ethnomusicologist Veit Erlmann:

Linda decided to take a job offer as packer at Gallo's newly opened pressing plant in Roodepoort. His choir soon attracted the attention of Gallo's talent scout Griffith Motsieloa, and before long one of Linda's songs, "Mbube" ("Lion") (Gallo GE 829; reissued on Rounder 5025, A5), topped the list of the country's best-selling recordings for the African listenership. Like most early isicathamiya tunes, "Mbube" was based on a wedding song which Linda and his friends had picked up from young girls in Msinga and whose words commemorated the killing of a lion cub by the young Solomon and his herdsboy friends.

While neither the words of "Mbube" nor its anchorage in a wedding song were particularly original, in the view of Evening Birds member Gilbert Madondo, it was Linda's performance style in conjunction with a number of other innovations that revolutionized migrant workers' choral performance. First, the Evening Birds were the first migrant workers' choir to depart from the isikbunzi principle of one singer per voice part and to augment the bass section by two singers (interview with G. Madondo, Soweto, 8 February 1987). While this alteration modernized early isicathamiya performance, in substance the strengthening of the bass section meant a return to traditional choral practices of ceremonial performance genres. Be this as it may, as a result of Linda's "invention," early isicathamiya groups rarely numbered more than six to eight singers, and when larger groups became fashionable in the 1950s, the principle of proportional preponderance of bass voices remained untouched:

If the choir has eight members, the distribution of voices would be: first part (leader), one voice; second part (alto), one voice; third part (tenor), one voice; and fourth part (bass), five voices. If there are ten or more members, the next to be reinforced would be the third part, or tenor, for example: first part, one voice; second part, one voice; third part, two voices; and fourth part, six or more voices. (Sithole 1979:277-78)

Concurrently with the reorientation toward traditional performance practices, Linda codified the harmonic texture of imbube music in using a simple I, IV, I , V7 pattern for all his songs. Almost as a counterweight to the traditional emphasis on bass parts, this basic chord sequence linked early isicathamiya music to the more Westernized genres popular among the upper strata of South Africa's urban black society, because it formed one of the lowest common denominators of all early urban African music regardless of class origin and specific ideological functions. (Erlmann 1990: 212-213)

The song first came to the attention of Pete Seeger because Alan Lomax, the known music collector, introduced him to it in the late 1940s. This led to The Weavers releasing a version of it in 1951 where it was titled “Wimoweh,” though the original line was “Uyimbube,” meaning “You are a Lion”). According to David Hutcheon’s study of the song, The Weavers credited the song as oral tradition and claimed that it was arranged by Paul Campbell, though Hutcheon notes that this was a pseudonym for the Weavers that allowed them to claim royalties (2017:18-19). However, the Weavers believed they had recorded a traditional Zulu song, though it later became clear that management, publishers, and others involved in the recording were aware that the song was the property of Gallo records. When Pete Seeger realized this, he sent a check for $1000 to Linda. Nonetheless, the record label argued that the song had never been copyrighted despite being recorded and that South African copyright did not apply in the United States.

It was first the group The Tokens however who introduced the lines “In the jungle, the mighty jungle, the lion sleeps tonight” that were added by David Weiss (Laing 2010). The song was also retitled “The Lion Sleeps Tonight.” Since then, the song gained enormous popularity and was featured in the Disney Movie The Lion King. Meanwhile, Linda’s descendants continued to live in destitution in South Africa despite the significant financial success of the song, whose total global earnings since 1939 estimated at 15 million as of 2006.

At Question: Should the Linda estate receive royalties for the song “The Lion Sleeps Tonight?

Planning a legal strategy

From Nancy Guy (2002:196)

“While there are international copyright treaties and conventions, "there is no such thing as an 'international copyright.'" United States copyright laws--which are among the most powerful in the world, since about 50 percent of all sales of prerecorded music worldwide are made in this country offer indigenous musicians little protection against the hunting and gathering activities of elite recording artists and multinational corporations. In her overview of these copyright laws pertaining to music, lawyer Sherylle Mills noted that a musical piece must meet three criteria in order for someone to be able to claim its copyright (1996:63):

• It must have a specific "author;" an author is defined as "the originator" or "he to whom anything owes its origin";
  • DEFENSE: How would you make the case that David Weiss was not infringing on copyright?
  • PLAINTIFF: How would you make the case that the Lindas retain some rights to the profits generated from this song?
• It must have a tangible form; its "physical rendering" may include a piece of notation, a tape recording, or some other tangible form.
  • DEFENSE: What are the physical lines of evidence that you can draw on to defend the actions of David Weiss?
  • PLAINTIFF: What are the physical forms of evidence to support the Lindas? Are there any other forms of evidence that you can draw on?
• It must be "original." Any work failing to possess one of these qualities is deemed to be in the "public domain"; in other words, anyone can use it for free.
  • DEFENSE: How might you defend David Weiss’ use of this work?
  • PLAINTIFF: How might you argue that this work is original to Lindas and therefore not in the public domain?

Music Examples

“The Lion Sleeps Tonight” The Tokens: https://www.youtube.com/watch?v=ZgI4DdINQLQ

“Mbube” https://www.youtube.com/watch?v=WH0BrpCK0Cc

Works Cited

Erlmann, Veit. 1990. “Migration and Performance: Zulu Migrant Workers’ Isicathamiya Performance in South Africa, 1890-1950.” Ethnomusicology 34 (2): 199–220.

Guy, Nancy. 2002. “Trafficking in Taiwan Aboriginal Voices.” In Handle with Care: Ownership and Control of Ethnographic Materials, edited by Sjoerd R. Jaarsma, 195–209. Pittsburgh: University of Pittsburgh Press.

Hutcheon, David. 2017. “The Story Behind the Song: The Lion Sleeps Tonight.” Mojo ‘60s 9:18-19.

Malan, Rian. 2000. “In the Jungle: How American Music Legends made millions off the work of a Zulu tribesman who died a pauper.” Rolling Stone, May. https://web.archive.org/web/20150418131844/http://longform.org/stories/in-the-jungle-rian-malan.