Information, Communication & Society

ISSN: 1369-118X (Print) 1468-4462 (Online) Journal homepage: https://www.tandfonline.com/loi/rics20

WHOSE WORKS AND WHAT KINDS OF REWARDS

The persisting question of ownership and control in the South African and
global music industry

Tuulikki Pietilä

To cite this article: Tuulikki Pietilä (2009) WHOSE WORKS AND WHAT KINDS OF REWARDS,
Information, Communication & Society, 12:2, 229-250, DOI: 10.1080/13691180802459963

To link to this article: https://doi.org/10.1080/13691180802459963

Published online: 17 Apr 2009.

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Tuulikki Pietilä

WHOSE WORKS AND WHAT KINDS

OF REWARDS
The persisting question of ownership
and control in the South African and
global music industry

This article examines copyright issues in South Africa and shows certain historical
continuities in musicians’ problems with ownership and control. It argues that in
organizing relationships and ownership two distinct systems coexist in the South
African music industry, which are here called the patronage model, on the one
hand, and the contract model of the global music industry, on the other. The
historical continuities arise from the fact that the music producers operating at
the junction of the two systems have been and remain in a position to concentrate
ownership and control to themselves, at the expense of the music creators.
There is a comparable concentration of ownership in the global music industry,
in which the biggest industry actors continue to benefit vis-à-vis the small ones.
Much of the ongoing debate on the ‘crisis’ of the music industry reflects the interests
of the major actors and revolves around the question of how to secure rewards for
music producers from the digital distribution and consumption of music. This
article insists that there are crucial issues of ownership that arise prior to distri-
bution and consumption; that is, in the relations and processes of production.
These lead to a question of how to improve ownership and control of copyrights
and other related rights of the composers and musicians vis-à-vis music producers
and publishers. A second question concerns the creation of a reward structure
that prevents concentration of ownership and control to any position or functionary
in the music industry.

Keywords Music industry; South Africa; ownership; copyright;

patronage relations

Information, Communication & Society Vol. 12, No. 2, March 2009, pp. 229 –250
ISSN 1369-118X print/ISSN 1468-4462 online # 2009 Taylor & Francis
http://www.tandf.co.uk/journals DOI: 10.1080/13691180802459963
230 INFORMATION, COMMUNICATION & SOCIETY

Introduction
In South Africa one constantly hears musicians express two seemingly contra-
dictory statements about the music industry. One of these says that ‘music indus-
try is all about relationships’, while the other asserts that ‘music industry is all
about ownership’. The latter statement refers to ownership of musical works and
is often furnished with explanations of how musical creations should be under-
stood as a form of property comparable to land, and the contest over their own-
ership of equal political importance. A yet further assertion is often added,
stating that ownership is best ensured by the musician ‘going independent’
and ‘corporatizing his/her skills’. The two root statements, one emphasizing
relationships, the other independence, seem to contradict each other, yet they
are often expressed by one and the same person. This article aims to make
sense of this apparent paradox by examining these and other statements in the
context of the past and present music industry relations and structures in
South Africa.
The South African music industry is the most advanced music industry in
Africa, with a long history of multinational corporations entwined with a
vital domestic industry. The post-apartheid era has seen a rapid expansion of
the independent scene as many musicians and record company employees
have decided to start their own labels. This has also meant a brisk appearance
and proliferation of black entrepreneurship on a scale unprecedented in the
history. The craze for going independent arises from the enabling and enthusias-
tic political environment of the post-apartheid era as much as from the historical
and contemporary experiences of copyright and royalty infringements. The
industry actors usually assert that their business is based on contracts just like
the global music industry is. It is argued here, however, that aside the contract
model functions another mode of organizing labour and ownership in the South
African music industry, a mode that is here called the patronage model. It is also
argued that there is a historical continuity in the way that copyright infringe-
ments have taken place and continue to take place in the intersection of these
two systems. The actors who have been able to position themselves at the junc-
tion of the two modes have concentrated control and ownership to themselves
at the expense of others (usually artists and composers). The job titles and the
exact identities of these actors have been changing in the course of history but
their functions and roles less so. It is their position and participation in the
two systems that has been critical in enabling them to combine benefits from
both systems.
The problems faced in the South African music industry are by no means
unfamiliar in other parts of the world. The idiosyncrasies of the South African
case derive from the particular political history of racial segregation, which
has given different categories of people very differential access to resources
and possibilities for self-realization. In their form, however, the problems in
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 231

the South African music industry follow the logic of appropriation more common
in the global music industry. This logic derives from the rationale of rewards in
music industry, which is based on rights ownerships and control. The forms of
appropriation consequently vary from a downright illegitimate signing of
another person’s composition under one’s own name to a totally lawful transfer
of a music creator’s rights through a recording and publishing contract to a
record producer and publisher. Even though one of the basic justifications for
the copyright system is that it purportedly motivates creators to create, in practice
it has been very effective in motivating music industry actors to amass rights and in
that way rewards and profits to themselves. Thus, the copyright regime has often
worked also as an incentive for adopting a rather capitalistic logic of accumulating
such rights – and it has led to a concentration of control and ownership in both
the South African and the global music industry.
The material for this article was collected in Johannesburg during two visits
in 2004 and 2005. The researcher (who is the author of this article) made semi-
structured interviews with altogether 104 music industry actors. Each interview
was made with an individual person, except for one interview which was made
with a group representing a music industry association. About 70 per cent of the
interviews were recorded and transcribed, the rest were protocolled during the
interview, and the notes were then fully transcribed straight after the interview.
Interviews were made with the following categories of people: 32 persons
representing the record companies and record labels; 41 artists; three producers;
eight record distributors/retailers; four representatives of collection societies;
seven persons representing five different music industry associations (includes
a group interview); three promoters; two independent PR persons/booking
agents; two representatives of record manufacturing plants; one studio tech-
nician; and one entertainment lawyer. It is important to note, however, that
the categories are seldom completely distinct from each other: it is typical
that a person functions in more than one role in the industry. Such mixing of
functions is common anywhere in the global music industry, but in this article
it is shown to have a particular role in enabling the development of patronage
relations. Indeed, the majority of the interviewed persons had acted in more
than one role in the industry, and the older the interviewee the more typical
such experience was. In the above listed categories, mixing of functions was
especially true for ‘artists’; the famous artists in particular could act as producers
and sometimes independent label owners, too. Of those categorized as artists
here, seven also had a label of their own at the time, two had once had a
label, and many more were planning to have one in the future. Additionally,
many of the famous artists especially acted as producers either occasionally or
on a more regular basis. As for fame, the range of the interviewed artists
extends from the internationally acclaimed to those who had only recently
started their careers. All the names of the interviewed persons that appear in
this article are pseudonyms and are indicated as such in the text; the names of
232 INFORMATION, COMMUNICATION & SOCIETY

the (locally or globally) well-known artists and producers and the names of the
companies are real.
The article starts with an account of the structure and history of the South
African music industry and the rise of the patron-like figures, the talent scouts-
cum-producers from the late 1930s onwards. In order to show the global rather
than the local character of the forms of appropriation, the case of Mbube is
recounted in the article. Mbube is a song that was composed by a South
African man named Solomon Linda but that eventually became world-famous
as The Lion Sleeps Tonight, creating a complicated and long battle over its owner-
ship between several claimants. The latter part of the article discusses how
patronage relations continue in the contemporary music industry in South
Africa, and examines the forms they take in the big companies, on the one
hand, and the small labels on the other. It will be seen how ownership is often
inescapably enmeshed in managing and negotiating relationships, a fact that
explains the seemingly controversial statements of the musicians about the
music industry. The article ends with a discussion about how the South African
case can be used to reflect on ownership issues in the global music industry.

Structure of the South African recording industry

Developments in the structure of the South African music industry have been
affected by the apartheid system, which defined ownership mostly as a white pre-
rogative. During the apartheid time, notwithstanding some few attempts at
black-owned record labels, the recording industry was heavily dominated by
white, and sometimes Indian, capital and managers, who were either working
for themselves or for international companies and labels in South Africa. The
white and Indian dominance remains today, even though there has been a signifi-
cant and rapid upsurge in the number of black-owned small enterprises in the
music industry, and some increase in the number of black managers in the big
record companies in the post-apartheid period. Yet below I will discuss how
even historically the situation was not quite so clear-cut along racial lines such
that whites would have been the managers and owners of the creative and enter-
tainment capital of the blacks. Because of the very politics of racial segregation,
the large white-controlled record companies needed black middlemen to get
access to the black talent.
The recording industry in South Africa can be traced back to the early
twentieth century when British companies such as Zonophone and Gramophone
Company established branches and agents in South Africa and started recording
music. In the 1930s Gallo, which had started by distributing overseas records in
the 1920s, extended its operations by opening a recording studio. During the next
decades, there were several powerful record companies, such as GRC, Trutone,
Teal, RPM, Tusk, and some others, which eventually became incorporated
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 233

either with Gallo or EMI, which itself was formed in 1931 by merging Gramo-
phone co (HMV) and Columbia Records.1
Of all the majors EMI has historically had the strongest presence in South
Africa; it was the only multinational record company that established its own
studio in Johannesburg in 1951 (and kept it until the early 1990s), and the
only major not to disinvest from South Africa during the apartheid years.
During those years, many international companies distributed their product
through licensees in South Africa, but took back the management control of
their labels after 1994. All the other majors returned to South Africa, except
for Warner Music, which Gallo today represent. Gallo itself is nowadays part
of the huge South African media and entertainment conglomerate Avusa
Limited. Avusa own the plant (CDT) that manufactures most of the CDs and
DVDs in the country. They also own the most important logistics system
through which most majors’ and small labels’ products are warehoused and
distributed in the country; another, less used, distribution system is owned
by EMI.
The major companies have their international and local departments, and for
all of them international repertoire forms the biggest share of sales in value
terms. However, unit wise the market share between local and international
repertoire is very even in the South African market, about 50/50 in 2003
(RISA statistics). Local repertoire sales have been steadily growing since the
end of apartheid, which is an important reason why record sales are increasing
in South Africa while they are decreasing in most other countries in the world
(see IFPI 2006, p. 104). In 2004 the value of the recorded music market in
South Africa was estimated to have risen by 20 – 25 per cent (Music & Copyright
2005, p. 8), and in 2005 by some 10 per cent (IFPI 2006, p. 96). The physical
sound carriers – CD, cassette, VHS and DVD – are the major formats sold and
spread, and the virtual music market is so far meagre.2
The small labels concentrate mostly on releasing local music, and they are
usually linked to the major companies through distribution, licensing, or joint
venture deals. In 2004 the combined market share of the major record companies
(including Gallo) in the South African market was estimated to be as high as 94.7
per cent, which leaves only 5.3 per cent market share for the small producers
(Music & Copyright 2005, p. 8). While the major companies are certainly domi-
nant in the South African market, these figures exaggerate their market share
somewhat; the figures are based on sales reported by the record companies to
the industry body RISA, which is dominated by the major companies and does
not include all the small labels, whose reported sales are thus missing. Addition-
ally, in their figures the major companies do not distinguish between records
produced and owned by them and those licensed by them from the small
labels, which own the products. The latter category especially has increased
during the past years.
234 INFORMATION, COMMUNICATION & SOCIETY

Relations of production and appropriation

Even though the recording of local music started in the early twentieth century,
the music that was born and popular among urban blacks was mostly ignored by
the recording industry until the 1940s, and professional musicians earned – and
preferred earning – their living and prestige most often by playing live (Coplan
1979, p. 143). Starting in the 1940s, and especially in the 1950s, the recording
industry became more powerful in the field of black music. Increased township
violence, removals from Sophiatown (a legendary Johannesburg suburb where
musical life proliferated) to Soweto, restrictive pass laws, and white musicians’
union’s efforts to restrict black musicians’ performances in the white clubs led
to a lack of live venues for blacks, and thus made them more dependent on the
recording industry for their incomes and exposure than they had been (Andersson
1981, p. 41; Coplan 1979, p. 154). On the other hand, extending the apartheid
ideology of separate development to broadcasting increased demand for recorded
local, ‘non-political’, black music to be aired in the seven language-specific Radio
Bantu stations (Meintjes 2003, p. 59).
The first big sellers that crossed-over to white audiences were in kwela music
(penny whistle music born in the towns and townships) in the mid-1950s. In the
1960s and ’70s mbaqanga music (‘commercial jazz’) especially became a prevalent
trend both in the airwaves and recordings. Whether playing African jazz, kwela, or
mbaqanga, the musicians recording in the studio were paid a flat fee; the star artists
and arrangers of music received a little bit more than the backing musicians per
recording. For backing English or Afrikaans records the musicians got three times
as much as for backing black records (Coplan 1979, p. 151). But altogether there
was no royalty or copyright system for the black creators of music. The Union of
South African Artists (USAA) that was established in 1954 managed to pressure
some record companies to royalty contracts for some black artists, but even then
it did not become a standard practice (Andersson 1981, p. 29; Coplan 1979,
p. 158). In the early 1960s a black artist might get a 2.5 per cent royalty, but
much depended on his or her fame, negotiating power, and relation to the
producer.
With the expanding markets for black recorded music, the white owners and
managers of the industry needed culture brokers to tap into the black talent. For
this task they started to employ black talent scouts, later in the 1970s to be called
producers. The first black talent scout Griffith Motsieloa was employed by Gallo
in 1938, but it was the next generation of black talent scouts that became
especially powerful in the industry (Allingham 1999; Coplan 1979, p. 161).
These talent scouts-cum-producers would recruit performers, often from the
rural areas, and group them for studio recordings that were put out on a pro-
duction line basis; a producer could put down nine single records (18 sides) in
an afternoon (Andersson 1981, p. 38). Individual musicians rather than existing
bands were brought together to record under a generic name or a name that was
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 235

associated with the producer rather than a band (Andersson 1981, p. 41; Coplan
1979, p. 163). If a group was signed, it was a common practice to sign the con-
tract with the band jointly but not separately with the individual members of the
band. In case a member became difficult, he or she could easily be replaced by
another one. So, sometimes when a contract was to be renewed, a member of a
band might find his name missing, when those mentioned in the contract would
be entitled to royalties, while the one left out might continue as a backing musi-
cian for the group, but only for session fees. As often, however, the artists were
made to sign blank contracts, or the contract could be changed after it had been
signed by the artist, to include other names. Artists, who still generally had very
vague understanding of royalties and their entitlement to them, might later find
out that the producer had been collecting them. Most notoriously, it often hap-
pened that producers signed artists’ compositions on their own name. This hap-
pened, for instance, in two early massively popular kwela artists’ music, that of
Spokes Mashiane and Aaron Lerole. For instance, the latter’s composition Tom
Hark, which also achieved international acclaim, was copyrighted, among
many other titles, by the producer Rubert Bopape.3
Signing other people’s compositions under one’s own name has been a
common form of appropriation in the music industry all over the world. This
has also happened to some South African songs on the international level, the
best-known case being Solomon Linda’s Mbube. Solomon Linda’s Original
Evening Birds were spotted by the first black talent scout, Griffiths Motsieloa,
and they started recording for Gallo. In 1939 they recorded Mbube, which in
ten years sold about 100 000 copies. Solomon Linda got the usual session fee
for the recording, after which the music belonged to the record company.
Later in the 1950s the song became a hit in the USA, with the name Wimoweh
by Pete Seeger and the Weavers. In the 1960s it reappeared on the charts, by
the name The Lion Sleeps Tonight by the Tokens. The song has since been translated
into several languages, has been recorded by more than 150 different artists and
has featured in at least 15 movies and stage musicals4. The song’s latest round on
the charts was in the 1990s, when it appeared in the Disney film The Lion King.5
There has been a long battle over the rights of the song. When Mbube had
become a hit in the USA as Wimoweh, Gallo traded the song (Mbube) to an
American publishing house in return for administering Wimoweh in Southern
Africa. Royalties from it would be split 50 –50 between the US publisher and
Pete Seeger and the Weavers. It was not an uncommon practice in the United
States in those days to claim writer royalties on new versions of old songs
that allegedly were folk melodies and belonged to the public domain. Often
the new versions or lyrics were written and registered under an alias. This is
what happened to Mbube as it turned into Wimoweh; it was registered as a song
written by Paul Campbell, which was a pseudonym for the Weavers. The com-
position now belonged to the Weavers’ publisher, Folkways Music. Later,
however, Pete Seeger came to regret this arrangement; he sent a payment for
236 INFORMATION, COMMUNICATION & SOCIETY

Linda and instructed his publisher to send his 50 per cent share of future royalty
payments to Linda. Meanwhile the new version of the song, The Lion Sleeps
Tonight, was signed as a composition of three other people in the United
States (Weiss, Peretti and Creatore). Confronted by the Wimoweh publisher,
Folkways Music, the two parties eventually reached an agreement, in which
Folkways Music was granted 50 per cent publisher’s share, and the three US
‘writers’ 50 per cent share. Folkways Music returned to Linda’s widow in
South Africa in the early 1980s to have her reassign the rights in the song
back to them, as the registration of copyright in the USA had to be renewed
after 28 years. After her death, Folkways exacted a further assignment of world-
wide rights to Mbube from Linda’s daughters.6 But back in the USA, as the initial
copyright on The Lion Sleeps Tonight was about to expire, the named writers and
publisher started quarrelling about it, and the case was taken to court in 1989.
The court awarded the song rights to the ‘writers’ Weiss, Peretti and Creatore,
and their publisher Abilene Music, with the proviso that 10 per cent of writers’
performance royalties go to Soweto to Linda’s family.7 This was when the song
was becoming popular again as a tune used in the Disney film The Lion King.8
In the late 1990s, South African journalist Rian Malan investigated the case
for the magazine Rolling Stone. He estimated that Linda’s family, which was living
in abject poverty, was receiving 12.5 per cent of the profits of Wimoweh and
around 2 – 3 per cent of The Lion Sleeps Tonight.9 The executor of Linda’s
estate brought a case against Disney Enterprises Inc, appealing to the British
Imperial Copyright Act of 1911.10 According to the provision, where an author
assigned his copyright during his lifetime, 25 years after his death the copyright
reverted to the executor of his estate, notwithstanding any other assignments of
copyright which might have taken place. Thus, it was reasoned that the rever-
sionary copyright had been vested in the executor since 1987 (that is, 25
years after Solomon Linda’s death). In 2006, a settlement was finally reached
between the parties (the executor, Abilene Music, and Walt Disney as the licen-
see of Abilene), entitling the Linda heirs to receive payments of past and future
royalties for The Lion Sleeps Tonight, and acknowledging Linda as a co-composer of
the song.11 The case is expected to set a precedent for comparable cases, as the
same rationale is applicable in all the countries of the former British Empire, in
which the Imperial Copyright Act of 1911 was made a law. Besides the potential
repercussions on the legal realm, the case has been celebrated on moral grounds
as a victory of a small creator against a global entertainment industry giant. The
case has also already contributed to the wider discussion concerning small
peoples’ ownership of their cultural heritage and tangible and intangible property
in a post-colonial era.12
The Graceland album is another example of copyright controversies related
to internationally successful South African music. Graceland appeared in 1986,
and earned The Album of The Year Grammy award. To produce the album,
Paul Simon had spent nine days in Johannesburg in 1985, recording with a
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 237

variety of top South African musicians, in addition to which sessions were held in
London, New York and Los Angeles.13 Eventually there was also a world tour in
support of Graceland, including some of the South African musicians. In Johannes-
burg a producer recalled how Paul Simon tried to buy the rights for the song Boy
in the Bubble from him; this was a song of a Sotho traditional group whose pub-
lishing rights had been assigned to this producer. The producer was infuriated by
Paul Simon’s attempt, and declined to sell the song, which was to become one of
the hits of the album.14 Simon paid the involved South African musicians amply
for the studio time, and the standard royalty cuts, and shared Graceland writing
credits with the South African writers15. He is also known to have donated lots
of money from the Graceland project to African and African-American causes.
Critics have pointed out, however, that Simon claims the overall ownership
of the final product, the Graceland album; only Simon’s name appears on
the front cover, and the inside says: ‘Produced by Paul Simon’, ‘All Songs
Copyright . . . Paul Simon’ (Feld 1994, p. 242; see also Meintjes 1990).
Rather than being idiosyncratic, the cases of Mbube and Graceland exemplify a
more common logic of appropriation in the music industry. From the viewpoint
of an artist, in the worst case such appropriation may take place on several points
of the music chain, as copyright encroachment can happen on both the domestic
and the international levels. Historically, within South Africa white artists in
general have been better treated than blacks, and the experiences of black
artists resemble those of black artists in the United States in the 1950s –
1970s, although in South Africa artists have not sued record companies and
producers in the court for the infringements, as they have done in the USA.
Appropriating black artists’ copyrights and royalties in South Africa has not
been a practice delimited to the black producers in big companies; such infringe-
ments have been done by white producers and in small white-owned labels, too.
The reasons have varied from pure ignorance about royalties, copyrights, and
publishing issues on the part of the record label owners to the deliberate unwill-
ingness to share knowledge and money with artists. When copyright infringe-
ments were done intentionally, the record labels and producers were taking
advantage of unknowing artists and composers, and getting rich from their
work behind their backs – all that can indeed be called downright exploitation.
Every composer who typically only found out much later that there were issues
of long-term ownership involved, which were never explained to them, was
rightly devastated. One such person, who for most of his life had worked as a
freelance studio musician, often also composing the songs to be recorded for a
front line star, recalled, embittered; ‘I found that for all those years my music
had been working for him (the producer), not for me’.16 As culture brokers,
the black producers in big record companies were in an especially privileged
position to expand their control and ownership vis-à-vis the black artists and
musicians. This is because they were operating at a junction of two systems of
organizing relationships in the field of musical expression and production, and
238 INFORMATION, COMMUNICATION & SOCIETY

combining the distinctive features and rewards of ownership of both of them.

These two systems were the historically older and regionally wider patronage
mode, on the one hand, and the contract mode of the global music industry
on the other.

Producer as a patron

What complicated or blurred the issue of exploitation was the fact that the
relationship between a producer and an artist was often very multifaceted.
Especially in the case of rural musicians that a talent scout ‘found’, grouped
and brought to a recording studio in Johannesburg, the ‘founder’ often
became a patron-like figure, if he felt there was potential in the group. Some
of the talent scouts had a stable of several bands in relation to which they had
several roles; not only had they identified the talent in those persons, they
also acted as their producer in the record company, and they might buy instru-
ments for the band, and arrange shows for them. Thus, the talent scouts were
acting as the producers and the managers of the band, and more than that; they
were in effect considered the ‘owners’ of the band. Sometimes musicians moving
to the city from the countryside found accommodation at or through this same
person. The relationship was thus many-sided and the musicians depended on
their patron in several ways. In recounting his personal history, an artist who
used to be a big star in the 1970s in South Africa and beyond said that he
would definitely not want to be in that kind of a relationship to one person
any more (as he and his band used to be), because it gives too much control
and ownership to that person.17 He added, however, that on the other hand,
that very ownership gives the person an interest in his protégé and in developing
his career. The talent scout uses his relationships to arrange shows for the artist
and to put his music on air – he arranges all the exposure which a beginner cannot
access by himself and without which ‘one is dead as an artist’, as the man said.18
In sum, the overall ownership of a producer made him ‘work for the artist’, too.
The big, notorious producers of the earlier decades are not around any
more, so their viewpoints could not be accessed for this research. A well-
established producer of a later generation, however, when telling about his
history, expressed regret on what he considered lack of acknowledgement
from some of the artists he had ‘discovered’. He explained how he used to
accommodate a promising artist in his own home in order to mentor him or
her, only to see that person fly away to the attractions of city life and looming
stardom, and later failing to give credit to the role of the ‘founder’ in establishing
his/her career.19
Trust, blanket, food, and instruments are the themes reappearing in other
people’s stories about their disappointments with those they had once helped
to establish themselves. An example of these themes in slightly more complexly
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 239

intertwined personal histories is the one related by a person, David (pseudo-

nym), who was a much used studio musician in the 1950s and 1960s. He
explained how he had helped an aspiring musician, Victor (pseudonym), when
he had moved from countryside to town, by accommodating him at his home,
giving him food, buying him an instrument, and appealing to a producer who
was initially not interested in recording him to give him a chance in the
studio. Much later Victor became a well-known musician in his own right,
and eventually one of the powerful producers in the history of the South
African music industry. David recalled how he later once saw Victor interviewed
on TV, downplaying David’s contribution to his career, and lying about having
bought his first instrument with the money he had earned through his own
menial work. But this denial was only one of the reasons for David’s disappoint-
ment with Victor; David had found out only decades after his own heyday that
Victor had shifted David’s compositions under his own name once he had become
a producer for the big company David was working for as a musician. Before
Victor, David’s compositions had been first falsely signed to Victor’s predecessor,
an earlier producer of the company. David was more disappointed with Victor
than with his predecessor, however, because he had considered Victor his per-
sonal friend. David was shattered by this breach of trust, repeating once more
the early history of Victor in Johannesburg by saying, ‘He had no blanket, he
had nothing, I covered him up, staying in my place, eating my food. . .’.20
Disappointment over a lack of proper acknowledgement for one’s efforts and
contributions to another person’s career might be a more universal feeling in the
music industry, and in its financial and moral weight should be considered sep-
arately from the lack of acknowledgement of copyrights. The sense of lacking
recognition, however, especially in a multifaceted relationship, might also give
a producer a self-justification for extending his name over a protégé’s work.
Yet, the particular historical moment and the coexistence of two different
modes of ownership enabled these producers to extend their control over
‘their’ artists’ work especially powerfully. Working on a patronage model,
their ownership of a band meant that they managed the band’s overall style
and career, and often the band members’ personal lives, too. In return for
this, they were entitled to gather the proceeds from the band’s work and use
them for or distribute them among the band members as they saw fit. Addition-
ally, working as producers in the big record companies, they were able to further
their control and ownership by utilizing the copyright system of the music indus-
try. The white-owned companies preferred to work through the producers as the
middlemen and have them deal with the black artists and their contracts, royal-
ties and pay cheques rather than dealing with the black artists themselves
directly. The extensive control of the biggest producers was thus based on
their ability to combine two different kinds and notions of ownership in their
position and person; that is, a patron’s ownership over his client’s work, and
the ownership of copyrights in the music industry.
240 INFORMATION, COMMUNICATION & SOCIETY

Musicians’ strategies and responses

Many artists who have their own experiences of powerful producers, or who have
heard of those of others, think that kind of a relationship makes an artist too
dependent on one person. The different strategies taken by artists to tackle the
situation can be roughly divided into two categories, which are: attempts to
negotiate more gains in the existing relationship, or attempts to lessen one’s
dependence on one person or firm. The former strategy emphasizes and makes
use of the fact of mutual dependence in a patronage relationship, and appeals to
the responsibilities of a patron in regard to his protégé. These are typically
appeals made by an artist to the patron and they usually concern the overall
well-being of the artist and the patron’s responsibility to take care of it. These
include such issues as the artist’s need for food, clothes, healthcare, housing, chil-
dren’s school fees, and help in different life cycle events, such as an artist’s close
relative’s funeral. These requests are not something that was addressed only to
individual producers in the past; managers in the big record companies in Johan-
nesburg today are often approached by these kinds of requests, and in fact many of
them do give some financial help, especially for their artists’ funeral or memorial
service arrangements. In doing so the record companies partly act in response to
public criticism claiming that well-known artists often die as paupers, because the
companies and not the artists profit from success. The response by the record
companies occasionally to give some aid to the artists shows that the criticism
and negotiation can sometimes help to bring gains for the musicians.
Historically musicians have also used the argument of a patron’s responsibil-
ities to different ends, that is, in order to get rid of a recording deal on the
grounds that the company has failed in taking care of them. For instance, one
musician recounted how, in the 1970s, his producer wanted to imprison him
for breaching his contract with the record company by moving to another
company. The musician recalled how he explained his situation to the policemen
to whom the producer had taken him: ‘I spoke my way out, I showed them my
reference book, my ID; yes, I owed tax, because they did not look after me! I had
no salary, I did not record when I wanted to. So they cannot claim to own me.’21
Session musicians were free to move between companies because they did not
have a contract binding them to any one company. Thus, the practice of
signing contracts with groups and not with the individual members of the
groups was not always simply a disadvantage to the musicians but also enabled
them to shift between companies. Even though a company would be unwilling
to release especially a front line artist, an artist had a compelling argument if
he/she had not signed an individually binding contract with the company.
Lessening dependence on one person or company has been the other major
way of dealing with too much concentration of ownership. Recording for many
companies on a freelance basis has been and remains one such strategy among
musicians, and since 1990s among the producers. This is, however, an option
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 241

for backing or studio musicians only and not for front line or star musicians or
artists, whom the record companies want to sign for a longer term. Nowadays a
common strategy is to make a recording and a publishing deal with two different
companies. A well-known and versatile artist can also establish several ‘pro-
duction houses’ for different genres of music that he creates and manage them
as separate companies, making different contracts for each. A popular artist also
has enough bargaining power to negotiate contracts for shorter periods with the
companies and publishers than is the case with starting or average artists.
‘Going independent’ is, however, the way the successful artists and musi-
cians have most eagerly pursued during the past years, and is what most of
those who have not yet done so plan or dream to do in the future. This
means that they either make and fund the production of their own records inde-
pendently or that they start their own label that releases other artists’ music and
possibly their own music, too. In both cases they usually sign with a bigger
company for a licence or a distribution deal for their products, even though
the most daring ones can decide to manage even the distribution of their
records. Within the past fifteen years of the post-apartheid era the urge to ‘go
independent’ has indeed materialized in the burgeoning of the small label
scene in general, and in particular in the field of black urban and popular
music, such as kwaito and hip hop, and nowadays also in the field of African jazz.

Continuities of patronage kinds of arrangements

The new small labels are often established by famous artists. Typically such a
person has initially had an artist deal with a big record company, and after
becoming famous, the company has started using the artist also as a producer
for other artists in the same genre. Opening his label, such a superstar-producer
might still continue releasing his own music and productions of others’ music for
the big record company, although if not happy with his recording deal, he can
also start releasing his own records through his own label. Either way, his inde-
pendence in regard to the record company increases. At the same time, as a label
owner such a person’s roles in regard to the artists signed to his label tend to
multiply in a fashion that resembles the earlier days’ producer – artist relations;
the label owner starts identifying and releasing new acts, often acting also as their
producer and co-composer, and using his own studio for recording their music,
as well as arranging some promotional gigs for them. Simultaneously, some of
the problems and tensions familiar from the earlier times’ production relations
are reproduced in these relationships. Among these are recordings without a
contract, lacking royalties, and unclarities in naming composers and in the
meaning of the publishing deal.
Thus, while there is a much better understanding among artists in general
today about copyrights and publishing, this knowledge unfortunately does not
242 INFORMATION, COMMUNICATION & SOCIETY

often trickle down to the beginners. New artists still easily rush into recording
once an opportunity arises, without a proper written contract or a clear under-
standing of it. While incomplete understanding of a recording deal and especially
of a publishing deal remains a common problem among new artists quite regardless
of the company they sign with, recording without any contract can today more
easily happen with small labels than with the major ones, which are under scrutiny
from the overseas regulations and parent companies. A story by a musician serves as
an example of such a case. The musician explained how their group used to earn
their living by playing regularly in township taverns with instruments owned by
a tavern owner. Sometimes they were invited to festivals, too, and when playing
in one such festival, an owner of a small label spotted them and offered them a
chance to record, saying that it would enable them to get their music on air, and
move them to play in the professional scene with professional instruments. They
eagerly accepted the offer, and recorded without a contract. The recording was
made in the label owner’s own studio, and the record was produced, mastered
and published by him. Only after starting to hear their music on the radio, the
group started asking for the contract, which the label owner kept on promising
them. This did not happen, however, and the group started pleading for money,
arguing that they were going hungry, and could not pay their electricity bills
nor recharge their telephones. The group had also accumulated a debt because
for each recording day they needed to hire transportation to the rather far away
studio. The label owner eventually gave them 50 CDs free to sell in their gigs.
When they persistently continued pestering him about their need for money, he
gave them some vouchers to eat in the Wimpy fast food chain. More than six
months after recording they still did not have any written contract with him.22
Whatever they managed to get in exchange for their recording depended on
their persistence in negotiating and pleading, and it did not bring them what
they wanted, that is, money, but other kinds of compensation. The fact that
they did not know that the record might not have brought a lot of money for
its producer either, did not help their feelings of having been cheated. Their
response to the situation accorded thus to the one strategy mentioned above;
they tried to plead for more gains in the patronage relationship, and their reasoning
was based on their basic needs and well-being.
In the cases where written contracts are made, the meaning of publishing and
publishing contract especially remains very weakly explained to and understood
by new artists, whether they are signing to a small label or a major record
company. The composer’s position has been particularly entrenched in the
South African music industry, because until today the broadcast and public per-
formance royalties have been paid only to the composer and not the performing
artist or the record company. In many European countries such ‘neighbouring
rights’ are acknowledged and paid to the performers and record companies on
the basis of The Rome Convention agreement in 1961 (Laing 2004, p. 76).
Neighbouring rights have been discussed in South Africa for a long time, even
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 243

the legislation has been in place for some years, and their implementation is
expected to start around 2008 –2009. Until the enforcement of the broadcast
and public performance royalties, an artist only gets royalties from record
sales. The well-established musicians are often aware of the importance of com-
posing, and they usually own their compositions and their publishing. In the pos-
ition of a label owner they often wish to compose and publish also for those
whose music they release, in this way extending their ownership in regard to
the artists in their stable. As one such star artist/producer/record label
owner said: ‘I want to compose many songs for myself and for others, I want
to become the biggest publishing house in South Africa’.23 In effect this means
that a small actor adopts and reproduces the logic of domination of a major
company, in a way that is totally legal – and that simultaneously reproduces
the controversial issues concerning ownership.
Confusions remain in a producer’s role, too. Thus, a band might find in their
record sleeve someone mentioned as the producer although he had had hardly
anything to do with producing the record; this might be a label manager or a
record company executive who wants his name on the record. When there is
an agreed-upon producer, it may sometimes even today happen that he signs
his name as a composer or a co-composer for an artist’s work although he did
not contribute to its composition. These controversies can take place in small
labels as well as in the big record companies. A young singer-songwriter
whose first album was released recently by a big company, becoming hugely
popular, found out that her producer had signed himself as a co-composer for
most of her songs, even though they were all her compositions. She only realized
that upon registering herself as the composer with the collection society, and
finding that the producer’s name was already there as the co-composer. The
record company considered the matter none of their business: the producer
was working for the record company on a freelance basis, and the record
company was not the publisher of the music. Therefore, it was an issue to be
discussed between the artist, producer, and publisher. What the record
company offered the artist instead was some financial help for her rent and
other living expenses – ‘Now that I don’t need it any more’, said the now
famous artist sarcastically, explaining that the company declined to help her
earlier when she was in need of money for exactly those purposes.24
In the big companies, patronage arrangements usually have to do with the
well-established artists rather than those beginning their careers, and most typi-
cally revolve around the issue of advances. A record company may offer an artist
an advance in order to keep her or attract her to their stable; the more compe-
tition there is for an artist, the bigger the promised advance easily is. Sometimes
artists can ask for an advance from their record company themselves, again typi-
cally for certain named and essential purposes, such as for paying rent, buying a
house or a car, or paying school fees for their children. What has created a lot of
confusion in the history and even in the present is the fact that an artist does not
244 INFORMATION, COMMUNICATION & SOCIETY

always understand that the record company writes the advances as debts that will
be deducted from the royalties. Moreover, the issue of how long such a debt can
run often remains unclear. Whereas usually in the music industry an artist’s debt
from one recording cannot be extended to her following recordings, in South
Africa there are cases where an artist has ended up owing such sums of money
to the record company that it effectively keeps him or her tied to the company,
putting out new records for the company in order to earn royalties to pay
the debt.25 This is again an issue that many established musicians are aware of
nowadays, and in order to avoid indebting and tying themselves to a company
they choose not to take advances. Some do, however, out of ignorance or need.

Patronage relations within a contract model

Any record company or label representative in South Africa would always claim
that their relations to their artists are based on full written contracts that both
parties have signed. They also point out that they always ask the artist to
consult a lawyer before signing a contract, but apart from the well-established
artists few are in a position to do so. However, as has been described above,
along the business model of contractually defined relations lives another practice
of governing relations, which imitates the patronage model. The patronage
relationships can replace contractual relations, but more often they work along-
side them. Today they seem to apply more to up-and-coming artists, on the one
hand, and popular stars on the other, whereas the middle-of-the range artists
with perhaps stable though not necessarily overly popular careers are the ones
who more neatly fall into the contract model. The possible rewards in patronage
type of relations are won more through persistent negotiation than contractually
defined terms, and in their form and conceptualization the rewards are often
something other than money. Typically they take the form of accommodation,
food, car, instruments, and records.
The non-monetary rewards are all things to be incorporated in the artist’s
self, and in that way they build and enhance the artist’s personhood, including
his or her potential for artistry. Such rewards simultaneously establish a relation-
ship between the giver and the receiver that is more indefinite and simul-
taneously more binding than a contractual relationship based on (a promise of)
monetary rewards is. An artist who is not happy with his contract or his royalties
and is bought a house by the record company finds it difficult to leave the
relationship even when he continues to be unhappy with the contract. This tie
is often both financial and moral in its nature, underlined by the fact that the
price of the house can be negotiated or the exact real sum simply not known
by the artist. It is meaningful that advances, too, are usually asked and given
for these specifically defined, essential purposes. The fact that they are eventually
given monetary value and defined as a debt returns them, however, to the
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 245

contract model, even though they initially seem to be something else. That is
why sometimes the relations rather imitate than are pure patronage relations.
However, what the non-monetary rewards effectively do is to blur the limits
of the involved persons and their rights, and thus the nature of the relationship.
There is thus certain continuity in the nature of the musicians’ relationships
to the record producers (in the broad sense, including the record companies and
labels in addition to the de facto producers) in the South African music industry,
even though the contract model is more entrenched than it was in earlier
decades. Today the relations between an artist and a producer are not as often
as many-sided as they were in the time of the few privileged producers who
in exchange for grooming their artists’ careers might assign their royalties and
copyrights to themselves. However, such things do still happen, one such
recent and high-profile case having been the death of the superstar Brenda
Fassie and the disputed roles of the producer and the record company lawyer
in her financial matters – in which the debated issues were her advances and
debts and the debated belongings a house and a car (see e.g. Modisane 2005,
p. 5; Oliphant 2005, p. 1, 14). And, as discussed above, the multiple roles
that many small label owners today play vis-à-vis their artists resemble very
much those of a producer and his stable of artists in the 1950s– 1970s.
Earlier artists were quite powerless in negotiating and checking their con-
tract (if there was any), as the contract might be changed after its signing
without the artist knowing it. There is certainly better overall protection of
artists by written contracts today, and royalties are a standard part of the con-
tract, although – as elsewhere in the world – an artist might eventually not
get much or any royalties if the sales were not big enough.26 But contracts
protect also the counter-parties, that is, the record companies and the produ-
cers, by enabling them to withdraw behind the word of the contract in case of
any dispute more easily than was or is the case in patronage relations. What
can today delude an artist is the fact that a relationship to a producer or a
record company might seem like a multifaceted relationship with some space
of negotiation beyond the contract, but turns out not necessarily to be like
that, when the contracts are pulled out and lawyers invited to inspect them in
a case of dispute. Indeed, whether it was a case of downright illegal practices
or of ‘merely’ ‘hazy’ ethics, many of the artists’ problems today arise from
their weak or false understanding of the nature of the involved relations and
of the full meaning of the recording and publishing contract.

Conclusion: the persisting questions of ownership and

control

In stating that ‘music industry is all about ownership’ and that one can ensure
one’s ownership only by ‘going independent’, South African artists refer to
246 INFORMATION, COMMUNICATION & SOCIETY

the historical and contemporary experiences of copyright and royalty infringe-

ments in the industry. More musicians in South Africa are becoming aware of
the importance of having their name on the musical work; they know that for-
tunes lay in ‘silent’ and ‘hidden’ ownership that works slowly over a long period
of time, and not necessarily in fame, which is visible, but often short-lived. In
talking about the importance of ownership and independence, and acting accord-
ingly, South African artists are aligning themselves with the logic of rewards in
the global music industry and its contract model. Accommodating to that model
has been and continues to be a learning process for South African artists, but so it
is for artists in other parts of the world – there is very little ‘natural’ about the
ideas of creativity, rights and rewards that the copyright system and the music
industry are based on.
There is a crucial discrepancy between the contract model and the reality of
music making in the rather individualistic premises of the former vis-à-vis the
social character of the latter. Composing a musical work, producing a record
and making it successful is a collective creative effort of several different
people and functionaries in the industry. The value of the different people’s
efforts is written down in the contract as their entitlements to certain specified
shares in the eventual sales and success, which are only realized long after the
contract is signed. However, there often seems to be those who feel that their
efforts are not properly valued, either in terms of monetary rewards or public
recognition. The questions of who came up with the original concept, who
found and cultivated the talent, who believed in it when no one else did, who
pushed it in the market, and even who participated in composing the music
and writing the lyrics, are often issues difficult to define unambiguously and
give an exact value to, even though that is what a contract model stipulates.
Indeed, some of the disputes in the industry derive from the fact that the contract
model on which the music industry is based requires defining the beneficiaries of
success in a more defined, exclusive, and individuating way than often is the
reality of musical creativity.
The patronage model in acknowledging the importance of negotiability and
diffuse relations between the involved persons might be closer to the reality of
the musical creativity and relations than the contract model is. This is certainly
one reason for the persistence of the patronage model in South Africa. Another
reason derives from its effects on the continuity of the involved relations. Even
though written contracts are very effective in legally binding an artist for a
certain period of time or a certain number of records, the tie in a patronage
relation is different in nature and even more binding because it involves the
full persons and binds them into more indefinite and morally loaded reciproci-
ties. It is because of this kind of a bind that the ideas and practices of the patron-
age model can be found underlying the dealings of even the biggest record
companies in South Africa; it is a way to attach an artist to a company with
another and possibly a stronger tie than a written contract does. This is why
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 247

South African industry actors, even those with full contracts, often sigh and say:
‘ah, music industry is all about relationships’. Artists often find that ownership
and rewards, even when written down in a contract, are not realized without a
complex process of negotiation and attempts at monitoring the other party to the
contract and its trustworthiness. The same applies to the small label owners;
regardless of their yearning for ‘independence’, they usually remain tied to a
bigger company through a licensing or a distribution deal, on the one hand,
and to the stable of artists they release, on the other, and all the negotiations
and scrutinizing thereof.
What I would like to emphasize, however, is that what I have here called a
patronage model is most probably not something peculiar to the South African
music industry; patronage kinds of practices and relations are likely found
almost anywhere in the global music industry, and for the same reasons. These
are the above-mentioned comprehensively binding character of the patronage
relations, and the fact that the patronage model is often closer to the reality of
music making than the contract model is. The examples of this article have
shown, however, that the wedding of the two models can lead to a particularly
high concentration of ownership to a patron-like figure at the expense of the
music creators – the composers and the artists. There is an analogy here to be
made with the situation in the global music industry. Ownership and control of
copyrights and other related rights over musical works is concentrated on a
few big industry actors in the world. The major copyright holders – and thus
the beneficiaries of the system – are the multinational media corporations and
their publishing wings, on the one hand, and the well-known composers and
artists vis-à-vis the smaller ones on the other (Kretschmer et al. 1999; Toynbee
2004, p. 124). The ownership and exploitation of these rights rather than the
sales of the physical sound carriers is becoming an increasingly important
source of revenue in the music industry. One reason for this is the development
of digital technologies that make intangible forms of music an expanding and
highly versatile area of music consumption.
The technological development has created a discussion about the ‘crisis’ in
the music industry. The ‘crisis’ talk reflects the concerns of the major actors in
the industry in that much of its focus has been on how to ensure the control and
hence the rewards of the right holders in the digital environment. From another
perspective, the technological development is permeated with hopes and prom-
ises of a potential change in the industry structures because it enables artists to
distribute their music directly on the internet without the intermediation of the
music producers and publishers. This development might indeed make an artist’s
desire of ‘going independent’ realizable to an unprecedented extent. So far,
however, the copyright regime and the ownership structures of the music indus-
try have hardly been altered by the technological change (Wallis 2004, p. 107).
Most artists in the world still release their music and receive their rewards
through the intermediaries. Led by the major music producers’ and publishers’
248 INFORMATION, COMMUNICATION & SOCIETY

interests, the current discussion on the music industry ‘crisis’ has mostly focused
on attempts to find ways to extend and ensure their control over the new distri-
bution channels and the users of music. This article reminds us, however, that
there are crucial issues of ownership that arise and are organized prior to distri-
bution and consumption, that is, in the processes of production. These lead to a
question of how to improve artists’ and composers’ ownership and control of
their music vis-à-vis the music producers and publishers through which they
often still release their music and which in the process often become the right
holders of their music. Another as crucial question is how to create such a copy-
right and reward system that prevents concentration of ownership and control to
any particular position or functionary in the music industry.

Acknowledgments

I am grateful to the Danish Social Science Research Council for providing a two-
year funding for the project (in 2003 – 2005) and to the Danish Institute for Inter-
national Studies in Copenhagen for providing the academic environment and
facilities for its realization.

Notes

1 Trutone became later part of Polygram, that is, Universal.

2 In 2005 CDs’ share of sales in South Africa were reported at 80 per cent,
DVDs’ share was 13 per cent, while other physical formats (singles, LP,
MC, and VHS) made 7 per cent, and digital (online and mobile) less
than 1 per cent of the sales in value terms (IFPI 2006, p. 96).
3 Some of Spokes’s music was composed by other musicians, and at least
some of these became signed by producers as their own compositions
(interview with Marc, 18 May 2005).
4 http://www.abc.net.au/news/newsitems/200407/s1151120.htm (accessed
10 January 2007).
5 http://www.3rdearmusic.com/forum/mbube2.html (accessed 10 January
2007).
6 http://www.wipo.int/wipo_magazine/en/2006/02/article_0006.html
(accessed 10 January 2007).
7 http://www.spoor.co.za/article.php?no¼488 (accessed 10 January 2007).
8 http://www.3rdearmusic.com/forum/mbube2.html (accessed 10
January 2007); http://www.carteblanche.co.za/Display/Display.asp?Id¼
1759 (accessed 10 January 2007).
9 http://www.3rdearmusic.com/forum/mbube2.html (accessed 10 January
2007).
 OWNERSHIP AND CONTROL IN THE MUSIC INDUSTRY 249

10 Although the true target of the litigation was Abilene Music Publishers, the
case was brought against Walt Disney Enterprises Inc. (as the most high
profile licensee of the song) because the South African court can only
exert jurisdiction over a defendant who has a place of business or other
assets in South Africa; http://www.wipo.int/wipo_magazine/en/2006/
02/article_0006.html (accessed 10 January 2007).
11 ibid.
12 For an example, see http://www.drbilllong.com/CurrentEventsVI/
Lion.html (accessed 10 January 2007).
13 http://www.wbr.com/paulsimon/graceland/cmp/essay.html (accessed
10 January 2007).
14 Interview with Ken, 6 June 2005.
15 Hamm 1989, p. 299; http://www.wbr.com/paulsimon/graceland/cmp/
essay.html (accessed 10 January 2007).
16 Interview with Stanley, 7 June 2005.
17 Interview with Joseph, 2 June 2005.
18 Ibid.
19 Interview with Paul, 27 April 2004.
20 Interview with David, 15 June 2005.
21 Interview with Steve, 14 April, 2004.
22 Interview with Robert, 12 March 2004.
23 Interview with Larry, 1 March 2004.
24 Interview with Mary, 13 June 2005.
25 In these cases it is often difficult for a researcher, too, to verify if such a
debt accrues from a regular advance or from some extra sums of money
that a company has borrowed for a spendthrift artist (which is often a
company view to the matter). Either way, the extended debt situation
reveals that there is something in the relationship between the two
parties beyond that defined in a contract.
26 This applies to artists anywhere: typically an artist starts earning royalties
only after the record sales have reached a break-even point, that is, the
point where the sales incomes have covered the costs accrued in making
the record (plus the potential sum given as an advance to the artist).
The fact that only the record company knows the figures and is not
liable to reveal their accounts to an artist is something that tends to
cause suspicion among artists towards their companies, universally.

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Tuulikki Pietilä is an academy research fellow in the Helsinki Collegium for

Advanced Studies. She is the author of the book Gossip, Markets, and Gender:
How Dialogue Constructs Moral Value in Post-Socialist Kilimanjaro (University of
Wisconsin Press, 2007) and of a number of articles and essays on trade and
gender issues in post-colonial Africa and on the world music industry.
Address: Helsinki Collegium for Advanced Studies, P.O. Box 4, SF-00014 Univer-
sity of Helsinki, Finland. [email: tuulikki.pietila@helsinki.fi]