The prisoner's song, your 'Loslappie' and my record sales

A homeless man sits under the dry Oudtshoorn sun singing a song his father used to sing. It is a song which had been passed down from generation to generation and is an adaptation of a 1926 all-time best-selling record. It is an Afrikaans version of The Prisoner's Song by Vernon Dalhart which sold over seven million copies worldwide¹. It tells the original story of a man going to jail and leaving a loved one behind, but the melody is much different to that of Dalhart's big success.

A struggling student musician walks by with a guitar strapped over his shoulder, kicking in the dust. He hears the man's song and is intrigued by the upbeat tune which accompanies the pitiful sight and sad lyrics. The next day, still inspired by what he heard, he sits down and writes down what he can remember of the lyrics and the tune. He composes a song of his own, rewrites the lyrics and the music and he calls it Loslappie.

Loslappie's lyrics and the music are now very different from the original The Prisoner's Song.

A couple of years later, having made his name as a successful Afrikaans musician and while performing at a popular arts festival, he sings this song to an audience which includes another upcoming artist on the Afrikaans music scene. After the show, the latter artist goes up to the musician and asks if he could record Loslappie on his next album. The answer is yes and the album achieves triple gold status. Loslappie is a huge hit.

Nearly a decade later, the author and composer of Loslappie issues a statement saying he should have been credited for this work and should have received royalties from the success of this song.

The performing artist counters by saying that the song is an adaptation of the folksong-inspired The Prisoner's Song and anyone can rework a folksong.

Is he right? Would an adaptation not attract copyright of its own and entitle its author to protection and to receive royalties whenever the song is reproduced, broadcast or even performed?

The Copyright Act provides that the owner of the copyright in a literary work (here, the lyrics), or a musical work, has the exclusive right to reproduce, publish, broadcast or perform that work, or to make an adaptation of it.

"Adaptation" is defined to include a translation, in the case of a literary work, and in the case of a musical work, any arrangement or transcription of the work, if such arrangement or transcription has an original creative character.

If an adaptation is made without the authority of the copyright owner, it amounts to an infringement of copyright.

The song sung by the homeless man in Oudtshoorn in the illustration above, is an adaptation of the original The Prisoner's Song. If no authority to make the adaptation had been obtained from Dalhart, it would have infringed the copyright in Dalhart's work (assuming copyright still subsisted in the song at the time).

Loslappie, in turn, is a further adaptation of the song sung by the homeless man, the author or composer of which is unknown. If the author and composer of Loslappie did not have consent to make an adaptation of that song, his work could amount to infringement of the copyright in that song.

However, Section 2(3) of the Copyright Act provides that "a work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright in some other work".

A work which infringes the copyright of another is therefore still eligible for copyright protection itself.

Loslappie, whether it infringes any copyright or not, would therefore attract copyright protection of its own that would require anyone who might wish to reproduce, broadcast, perform or adapt it, to obtain authority from the copyright owner and possibly pay royalties.

However, if an infringing adaptation (Loslappie) is made of another infringing adaptation (the homeless man's song), it does not necessarily infringe the original work (The Prisoner's Song). It will very much depend on the facts and whether a substantial part of the original work has been used (either lyrics or melody or both).

In the illustration above, Loslappie is arguably so far removed from The Prisoner's Song that it cannot be said to be an adaptation of it.

There are therefore a few lessons to be learnt from this scenario:

1. only a copyright owner has the right to make an adaptation of his or her work;
   
   
2. if you are reworking the lyrics or the music of a song written or composed by someone else, it is advisable to clarify who the copyright owner is, whether copyright still subsists in that work and, if so, to obtain the copyright owner's consent before making an adaptation;
   
   
3. a work which is an unauthorised adaptation of an earlier work could still attract copyright protection;
   
   
4. performing, reproducing or broadcasting a song which may be an infringing adaptation of another work, be it lyrics or music, may still require authority from the copyright owner of the "infringing" work and royalties may be due to him or her.
   
   
   
   ¹http://en.wikipedia.org/wiki/The_Prisoner's_Song