I needed to do a bit of background research for the lecture I’m using to open today’s Digital Democracy class at Harvard. The end result is this (rather long) blog post. (In the unlikely event that you’re a Digital Democracy student and reading my blog, you should skip this unless you really want to be bored later today…)

In 1992, French composers Erik Mouquet and Michel Sanchez layered a female vocal over a techno drumbeat and released a single called “Sweet Lullaby”, the featured track on their debut album, “Deep Forest”. Whether you know it or not, you have likely heard the track dozens of times. Deep Forest’s album sold over a million copies in the US, and “Sweet Lullaby” was featured in the film “Ready to Wear”, in promos for the Discovery Channel and ads for The Body Shop. Using the song to promote other products helped drive album sales:

“Done tastefully, exposure through vehicles like commercials can translate into sales,” [VP of Promotions for 550 records] Schaev says. “We worked out a deal with Sony that featured ‘Sweet Lullaby’ on a Trinitron commercial, with a chyron identifying it. That was on TV every 10 minutes, which certainly didn’t hurt.” (From Billboard, March 18, 1995.)

It also didn’t hurt that Mouquet and Sanchez positioned themselves as defenders of global musical culture. Their bio, on their website hosted by Sony Music France, begins with the humble declaration:

“Eric Mouquet and Michel Sanchez of Deep Forest are sound reporters. A voiceless musical duo, they draw on voices from every corner of the world. Under their patronage, infinitely distant utterances have become familiar to us. Hymns of joy and cries of anger, prayers and aubades, songs of hope and despair have all been brought to shake our certainties, seize our senses and stir our emotions. From Africa or Eastern Europe, from pygmies to nomads,the human visions brought to us by Deep Forest have helped greatly in narrowing the musical gap between the hemispheres.”

Before thanking the voiceless musical duo for their ceaseless reportage, it’s worth taking a look at how “Sweet Lullaby” came about, something that anthropologist Steven Feld does at length in his excellent article “A Sweet Lullaby For World Music”. (Ironically, the best version of the article I’ve found online and unlocked is at a Deep Forest fan site.) Most listeners to “Sweet Lullaby” assumed the vocal was a melody from one of the pygmy tribes of Central Africa. The first track of the Deep Forest album features the vocal: “Somewhere, deep in the jungle, are living some little men and women. They are our past. And, maybe… Maybe they are our future.”

While pygmies may be our future, they’re not the vocalists responsible for “Sweet Lullaby”. The sweet lullaby in question is called “Rorogwela”, and it’s a Baegu lullaby from the Solomon Islands, which are located just east of Papua New Guinea, roughly 8,000 miles east of the Central Africa rainforests where pygmies live. “Rorogwela” is sung by a woman named Afunakwa, who was recorded in 1970 by a Swiss ethnomusicologist, Dr. Hugo Zemp, who was working for the Ethnomusicology Department of the Muse de l’Homme and Centre National de la Recherche Scientifique. The recording was re-released on CD in 1990 by UNESCO as part of their “Musics and Musicians of the World” series, which was distributed by record company Auvidis.

Coincidentally, Dr. Zemp had made recordings of the Dan people of Cote d’Ivoire, many of which were also released by UNESCO. It’s through these recordings that Dr. Zemp first heard from the Deep Forest boys.

Deep Forest had begun sampling pygymy vocals recorded by Zemp’s colleague Simha Aron, and some of the Dan chants recorded by Zemp. Their record company contacted Noriko Aikawa, UNESCO’s Chief of Cultural Heritage, to ask about licensing samples from several UNESCO recordings for use in a project for Earth Day. Aikawa declared himself in favor of the project if the ethnomusicologists who’d recorded the pieces approved and if the original artists were properly credited.

Aikawa played Zemp a recording from Deep Forest, which layered some of his West African recordings over a techno beat. Zemp refused to license the samples and encouraged Aikawa to focus UNESCO’s efforts on promoting traditional music rather than on fusion projects like Deep Forest.

But “no” is only a minor setback when you’ve got a potential hit on your hands. Deep Forest hired Francis Bebey, a world-renowned Cameroonian musician and composer, as a “producer”. Bebey, then 72 and in ill health, called Zemp to express his support for the project; based on his personal esteem for Bebey (who, tragically, died shortly after his “production” work) gave a verbal okay for the group to use a 40 second sample from his West African recordings for a non-commercial, charitable recording.

Fast forward two years. Zemp hears his recording of Rorogwela, remixed by Deep Forest as “Sweet Lullaby” as the background to a shampoo commercial. Understandably upset, Zemp asked for meetings with UNESCO and Auvidis. Reviewing the correspondence on the matter, Zemp discovered that neither UNESCO or Auvidis had given permission to Celine Music, Deep Forest’s record company, to use the sample.

Zemp wrote an angry letter to Deep Forest, demanding that his name be removed from the project and that the Baegu people share in the profits of the recording. Deep Forest responded two months later, insisting that they’d had permission from Auvidis, and refusing his other demands. Zemp, in true academic fashion, wrote an angry journal article for the Yearbook of Traditional Music, accusing either Auvidis or Deep Forest of lying. The journal editor, fearing legal action from Sony, cut the statement.

Enter Jan Garbarek, a well-respected Norwegian jazz saxophonist. Garbarek heard Deep Forest’s “Sweet Lullaby” and became fascinated by the melody. Since Deep Forest hadn’t credited Afunakwa, Garbarek guessed that the melody came from Central Africa and recorded his world fusion version of the song as “Pygmy Melody”.

By this time, the “Sweet Lullaby” story had become a cause celebre for the ethnomusicological community. Steven Feld, author of the aformentioned article on “Sweet Lullaby” was giving a speech in Norway on his research on “pygmy pop”, the use of pygmy music in rock and jazz compositions. Radio Producer Marit Lie of Norway’s NRK radio was in the audience and sensed a story idea. She contacted Garbarek and confronted him with the information that his “Pygmy Lullaby” was a stolen Melanesian melody. Garbarek defended himself with a comparison to Edward Grieg, explaining that the melody was part of the “oral tradition” and hence fair game for serious composers to use.

NRK radio ran a story on Garbarek’s Solomon Islands/Central Africa confusion, which deeply upset the composer, who complained to Norway’s journalism oversight bodies. Garbarek felt the radio story had accused him of failing to pay royalties on the “pygmy” melody. Garbarek insisted that he’d been legally in the right, as TONO, the Norwegian performing right collection society – essentially, the Norwegian version of the US’s ASCAP or BMI – had determined that Garbarek should get half the royalties from “Pygmy Lullaby”, while the other half should go to a fund to support cultural preservation… Norwegian cultural preservation.

In all my reading about “Sweet Lullaby”, I can’t find any evidence that anyone ever tried contacting Afunakwa in the Solomon Islands to find out what she thought about the success of “Rorogwela”. Nor can I find any evidence that anyone – including Deep Forest – wrote her a royalty check for her contribution to Deep Forest’s success. While I certainly feel that Hugo Zemp was wronged (egregiously so, when Deep Forest claimed his blessing in liner notes albums subsequent to their debut!), I find the idea that the ethnomusicologist controls rights to the recording troublesome.

When Hugh Tracey loaded a pair of pickup trucks with recording gear in the 1950s and drove into Central Africa to record the pygmies of the Mbuti region for the International Library of African Music, it’s possible that assigning copyright to the “producer” was the correct solution to the problem of crediting “field recordings”. (If this article is making you anxious to hear actual pygmy music, allow me to recommend Tracey’s recordings of Mbuti pygmies in 1952, re-released on CD in 1999.)

But “field recordings” have gotten a great deal more troublesome in recent years. My friend Bernard Woma is one of West Africa’s leading balafon players. A member of the Dagara people of northwestern Ghana, Bernard plays with the national theatre of Ghana, leads his own ensemble of musicians and dancers, and teaches music in Ghana and the US.

In the mid-1990s, one of the best ways to hear Bernard play live was to visit him at Nandom House in the Mamobi neighborhood of Accra. After church on Sundays, Bernard and friends would drink pito (a homemade millet beer), eat bean cakes and play traditional Bewaa-style xylophone music. One Sunday in November 1996, Mark Seidenfeld approached Bernard and asked for permission to make a field recording of one of these sessions. Bernard, nice guy that he is, agreed.

On one of his subsequent trips to the US, Bernard’s friends told him how much they’d enjoyed his new CD, “Live at the Pito Bar”. Seidenfeld had gotten in touch with John Zorn’s Avant record label, who, fascinated by the polyrhythms of Bernard’s playing, agreed to release the album. The resulting CD credits Seidenfeld as the producer, Zorn as executive producer, assorted engineers and associate producers… but doesn’t list Bernard or any of the other performers. Oh, and Bernard didn’t get paid, either. Nor did he given permission for the recording to be released commercially.

Perhaps the folks at Avant/Disk Union assumed that, as a “field recording” of “traditional” music, they had no obligations to the performer. But while Afunakwa may be tough to locate, Bernard’s got a website, a hotmail address and a teaching position at SUNY Fredonia. And while Bernard plays in a traditional style, many of the pieces he plays are original compositions. The liner notes for “Pito Bar” don’t include any composer acknowledgements – the copyright on the CD is assigned to Disk Union, the publisher.

Bernard is a realist and understands that “Pito Bar” has probably made very little money for Avant. His objections to the recording are less financial than cultural. The track names on “Pito Bar” aren’t the accurate Dagara names for the songs – they’re words of Twi and Ga, mostly slang terms for food (possibly the only Twi words Seidenfeld learned…). The woman featured on the cover of the album is an Ewe, from southeastern Ghana, rather than a Dagara. And the liner notes imply that the unique sound of Dagara xylophone is the product of pito-fueled drunken frenzy, rather than the product of a sophisticated musical culture.

It’s a moot point whether or not Bernard could bring legal action against Avant – he hasn’t, and probably will not. Avant has not responded to complaints brought on his behalf by sympathetic American ethnomusicologists, and Bernard doesn’t have the resources to sue Avant. Even if he did and a court found in his favor, it’s unlikely that an adequate remedy could be found: Bernard wants the Dagara to be credited, accurately, for their cultural achievement, and resents the confusion the Avant recording has caused. How do you remedy the damage Deep Forest did to the Baegu, assigning their cultural heritage to an unrelated people a third of the way across the globe?

“Traditional” music gets even more interesting when large corporations come into play. When Disney released their straight-to-video Lion King 1 1/2, it featured a recording of “The Lion Sleeps Tonight”, recorded by Lebo M. (It’s also featured on the cast recording of the Broadway show.) The Disney album lists the song as being composed by “Luigi Creatore/Lebo M./Hugo Peretti/George David Weiss”.

The truth is a bit more complicated. In the 1950s, Pete Seeger began singing his version of “Mbube”, a song written by South African songwriter Solomon Linda in 1939 and recorded by Linda and his band, “Solomon Linda and the Evening Birds”. Seeger had trouble pronouncing the Zulu words, and sang the chorus of the song as “Wimoweh”, which is how the song is commonly known in the US. To his credit, Seeger ackowledged Linda as the composer of the song and send him at least one payment in thanks for the commercial success he had with the song.

Songwriter George David Weiss added the English lyrics to the song, which was later popularized by Brookyln doo-wop band, the Tokens, in 1962. Over 150 bands have recorded the song subsequently, generally attributing authorship of the song either to Weiss, Creatore and Peretti, or to “traditional/unknown”.

Dr. Owen Dean, an attorney with Pretoria’s Spoor and Fisher, and an expert on historical copyright law in South Africa, made an interesting discovery earlier this year. Linda sold the copyright on “Mbube” to a South African company in 1939 for ten shillings. Under the copyright laws in force in South Africa at the time, the ownership of the song should have reverted to the composer’s estate 25 years after his death, revoking any existing deals and forcing any users of the copyrighted material to renegotiate with the composer’s heirs.

Armed with this strategy, Dean sought – and was awarded – authorization to attach Disney’s trademarks in South Africa -including Mickey Mouse, Donald Duck, et al., until resolution of the case. (Spoor and Fisher, not shy about publicity, issued a news release titled “Mickey Mouse, Donald Duck and others ‘kidnapped and held hostage’ in extraordinary legal proceeding” after being awarded the attachement order.)

Disney has responded by arguing that they had a license to use the work from Abeliene Music in New York, and that the party responsible to Linda’s estate is Abeliene (which, conveniently, lacks assets in South Africa.) More recently, they are claiming that Solomon Linda’s widow signed away rights to the song years ago. While Disney is taking some PR hits over the issue, it’s unclear whether Linda’s children and grandchildren – none of them wealthy people – will receive compensation for use of the work.

With a recent decision in the 6th circuit making unauthorized sampling of copyrighted sound recordings unambigiously prohibited, it’s becoming almost impossible for turntablists, hip hop producers or any other collage-based composers to create original works from America’s popular culture.

The rise of mash-up culture seems to be an acknowledgement of this reality. Without an army of sample-clearing lawyers, you’re never going to be able to release your sample-heavy recording. So why fight it? Release it online for free, let the peer to peer folks distribute it, and accept that whatever money you would have made is counterbalanced by the fame and goodwill you’ve gotten from the Internet community. It’s worked well for The Kleptones and for DJ Danger Mouse, whose “Night at the Hip Hopera” and “Grey Album”, respectively, have made them Internet heroes.

But if you’re interested in those fat commercial soundtrack checks from Sony, you’re going to need to steal your source material from someone less likely to sue you. History seems to suggest that you can’t go wrong stealing from obscure field recordings or little-known African musicians. Should they discover your theft, they’re unlikely to have the resources to take you to court. If you get caught by the press, you can always claim that it was your intent to protect and promote indigenous culture.

There’s evidence that people in the developing world are starting to fight back, at least on another front: “bio-piracy”. In 1995, the University of Mississippi Medical Center was issued a US patent for the “novel” use of turmeric for improved wound healing. This was hardly a novel use for the Indians who’d been using turmeric for exactly this purpose for thousands of years. But US patent law does not recognize undocumented foreign “traditional knowledge” as prior art – to challenge the validity of the patent, the New Delhi-based Council for Agriculture Research had to present an ancient Sanskrit manuscript documenting the use of turmeric for wound healing. Council for Agricultural Research prevailed, and the patent was withdrawn in August, 1997.

It’s worth noting that the US government issued the patent despite its obvious lack of novelty, and that an Indian-government supported organization was forced to challenge the patent at their own expense. While India is aggresively fighting “bio-piracy”, other developing nations lack the resources or expertise to fight what can be expensive legal battles. It’s also worth noting that the Indian government chose to challenge the validity of the patent as a whole, rather than attempting to claim ownership of the patent by the Indian people.

What do pygmy lullabies and turmeric have in common? As “traditional knowledge”, they’re both badly protected under US intellectual property law. And, as a result, they’re an easy target for savvy IP “pirates”, those folks smart enough to stay out of the well-patrolled waters of US intellectual property and set sail for the untroubled IP seas of the developing world. It’s the sort of thing that makes you want to say “Arrrrrr!”