Criminal record: How Malcolm McClaren ripped off SA musicians

In 1980, Malcolm McClaren arrived in Paris after fleeing London, The Great Rock 'n' Roll Swindle and the wrath of the Sex Pistols, the band he managed. He got a gig sourcing porn movie soundtracks, something no self-respecting porn producer would want to spend a cent on.

Among the vast collection of records at the ethnographic music section of the Library of the Centre Pompidou he discovered the Burundi beat, Caribbean merengue, some American folk songs from the minstrel era, and shook hands, metaphorically speaking, with a couple of Yoruba deities.

He also discovered mbaqanga, in the form of a song by a then unknown group called the Mahotella Queens. The song was Umculo Kawupheli. Virtually unchanged, the song would form the basis of the Bow Wow Wow hit See Jungle! (Jungle Boy).

Good news for the composer, Marks Mangwane, and his band, the Mahotella Queens, right? Wrong. They weren't even aware of it. No permissions were sought, and the composer's copyright ignored. In fact, McLaren substituted his own name, and those of the three Bow Wow Wow musicians, as the composers. No-one raised an eyebrow.

McLaren, sick of ungrateful musicians, had earlier decided that he'd stick to fashion (Vivienne Westwood, largely credited with the trashy safety-pin look of the punk era, was his lover), but this venture into a world of bared flesh and heavy breathing intersecting with the ethnographic world of expired copyright and traditional compositions provided a flash of inspiration that would determine his future for the next decade. Instead of making others pop stars, he would become one himself, and a composer to boot.

CASHING IN ON THE CITY OF GOLD

Cut to Johannesburg, South Africa, 1982. Phil Hollis, a local music-biz wheeler-dealer,
is preparing to pick up an Englishman at Jan Smuts Airport. This guy is a punk, he has been told. Hollis doesn't quite realise that he is a punk-rocker, and that there's a bit of a difference. McLaren, of course is neither a punk nor a punk-rocker, but a visionary (if crooked) entrepreneur with that rare gift of intuitively being half a step ahead of the times.

"So I go to the airport," Hollis says, "and this Limey steps off the plane, and he's dressed in his pajamas. I laughed, hey!"

Unbeknown to either of them, the project that they were about to start would have a major impact on the music world. The album, not yet called Duck Rock but "Folk Dances of the World", anticipated the popularity of scratching, rap and hip-hop; the sampling of music and the mash-up of genres.

The album was to all intents and purposes McLaren's debut project as a composer/ performer, based on the recent success of See Jungle!. But since he couldn't play an instrument, he couldn't compose, could he? Hence this fairly simple solution: identify some tunes, hire some musicians and a producer, add lyrics and some layers, and claim copyright for this "new material".

Originally, the idea was to use folk songs for which the copyright was either expired or in the public domain, ergo the (very unsexy) working title. Most of the album was indeed structured like that, but all five of the songs recorded in SA were based on existing songs, the composers of which were still very much alive at the time.

"I introduced him to those songs," says Hollis. "How else would he have known about them?" Hollis, with the help of Lulu Masilela, a musician who worked with him as a producer, then set about to gather a group of musicians, rehearse the tunes that McLaren selected, and record them.

"He wanted my help, so I phoned around and got Big Jack [Lerole], [Dingane] Vilakazi, Exchange Nkosi and a few others to come and play some music," says Masilela. "He put us up in the Carlton Hotel too, so he could see us when he wanted to, and so we didn't have to go home. There was a curfew, remember?"

Masilela was well-connected. He was also an integral part of what was essentially a Gallo studio band called The Boyoyo Boys, along with Petrus Manele, who was the composer of most of their songs, including Puleng and Tsotsi.

Double Dutch, ripped from Puleng, would become McLaren's top hit, reaching No 3 on the UK charts, and with the 12" release, also breached the US dance charts. Tsotsi became Zulus on a Time Bomb, the flip side of the Double Dutch single, though it would be excluded from the album.

McLaren knew of the Mahotella Queens, having plagiarised a song of theirs before, and now co-opted two more of their tunes, Thina Siyakhanyisa, which became Jive My Baby, and Kgarebe Tsaga Mothusi, which became Punk It Up.

The fifth song, (On The Road To) Soweto, was lifted from a General MD Shirinda & the Gaza Sisters song, He Mdjadji, a Shangaan ode to the Rain Queen.

NONSENSE LYRICS

In the meantime, while things were being set up by Hollis and Masilela, producer Trevor Horn and engineer Gary Langan flew in from New York where they'd started recording the album.

Horn was a catch. A musical genius and an electronic music pioneer, Horn was still riding on the back of a massive hit, Video Killed the Radio Star, and had joined the prog rock band Yes as the new vocalist, replacing Jon Anderson, the previous year.

Now, Horn was concentrating on producing, and was the proud owner of one the first-generation Fairlight samplers. He would use this to great effect on the Duck Rock album.

Shuttling between the downtown Satbel Studios and the Carlton Hotel, McLaren and Horn duly rejigged the tunes, and, working with different musicians, including the Mahotella Queens, re-recorded them, finally adding vocals by McLaren.

This was possibly the strangest addition to the songs, which were strictly mgqashiyo style mbaqanga tunes, hip-twistingly fast Zulu and Sjangaan rhythms with fiddle, accordion and brass licks over the standard guitar picking and sturdy rhythm and bass.

McLaren's rapper-style lyrics, freshly inspired by his New York sojourn, were upfront, but otherwise devoid of meaning. Not that it made any difference. Changing the lyrical content gave him at the very least co-composer status and authoring rights. But McLaren wasn't interested in sharing. He wanted it all.

Exactly what kind of deal - if any - was made between the cohort of black musicians and composers and McLaren and Horn is not known, but there was surely an expectation
of a royalty share.

According to Horn various musicians accepted payment of £1,000 each, "many times the going rate in South Africa".

Later, he elaborated: "The Africans got married on what we paid them. The Cubans charged us a lot of money, they really had their heads screwed on right. The Dominicans charged us a fortune. They screwed us! " - suggesting that a lot of to-and-fro screwing was going on.

NO ROYALTIES

There is a defensiveness in Horn's statements at the time that is rather unseemly for the man whose impact on pop and electronic music in the '80s was such that he has been called "the man who invented the '80s".

"Uh-uh," says Masilela, a denial confirmed by Hollis, who routinely covered the local tabs and got refunded by McLaren's UK label, Charisma. "They just paid us a standard flat fee for the sessions. I got about R3,000, being the team leader, and the others a bit less."

The South Africans only realised what was happening once the album was released. The local release was overseen by Teal-Trutone, the South African licensor of Charisma, the original label and a joint venture between Gallo Africa and Phonogram.

On the album's label only McLaren/Horn are credited, with the publishing rights going to Horn and his wife's publishing companies Unforgettable Songs and Perfect Songs, and McLaren's publishing company.

All the South Africans were cut out of the deal, and with that, out of royalties too. Petrus Manele, the composer of Puleng and Tsotsi; Marks Mankwane and Rupert Bopape, the composers of the Mahotella Queens songs; and Shirinda, the composer of  He Mdjadji, who should at least have got a 50% original composer's share, were at that point getting zero.

But no-one had reckoned with the sharp business sense of one Phil Hollis, MD of newly registered indie Dephon Records, who had negotiated a joint licensing agreement for the Manele songs with Gallo Publishing, the owners of The Boyoyo Boys catalogue, when he realised what was happening in the recording studio. (Gallo in fact appeared to be the owner of all five songs' publishing rights, as the Mahotella Queens and Shirinda were also signed by them.)

"I hopped on a plane to London with my lawyer to have a chat with McLaren," says Hollis, "but when I got there, he told me to f*ck off. So I sued him. My lawyer, a really sharp guy, suggested we go for the wallet, so we petitioned the court to freeze the royalty payments."

The judge obliged, and issued a judgment. That was the leverage they needed, and McLaren and Horn were forced to the negotiating table. Hollis felt his job was done, and he handed over to Gallo, who sent their legal council, Fred Withers, to finish the negotiations. And this is the point where the waters go murky. 

"I dunno what happened afterwards," says Hollis. "They never told me."

"I have no idea," says Withers, "I had nothing to do with it. Ask Steve Harris."

"Jeez, I don't know," says Steve Harris, "I was just the junior A&R man."

According to all the available information, the case was settled out of court for an undisclosed sum of money, meaning there's no record of anything - despite Hollis winning a judgment.

A rumoured sum of £200,000 was paid out, but to whom? Hollis claims he didn't see a cent, and reckons the money was spent on legal fees.

It's hard to believe that all that money went to lawyers, though. It's even harder to believe that no-one knows what happened. What was the point of suing?

Hardest to believe is that the lawyers settled out of court for legal costs when they had a watertight case of plagiarism. McLaren and Horn kept the composer credits, according to McLaren's biographer, suggesting a one-off final settlement - which would not have been in the interest of the original composers.

"Manele got paid some money," says Masilela. "He didn't tell me, Vilakazi did, and then I confronted him, but he gave me nothing." There's a long pause. "He got himself a girlfriend, and drank a bottle of whisky every day. Every day! Then he got sick, and died."

ANOTHER TWIST

There's little doubt that McLaren always intended to grab the composer credits for himself. There was no outrage at the time.

Paul Gorman, in his extensive biography of McLaren, simply says of this theft: "Less attractive was McLaren's and Horn's repurposing of existing songs without credit to the originators" - my italics. "'Repurposing" is a term you use when you turn old car tyres into soles for Zulu sandals, or a ploughshare into your favourite braai dish. What these two did was clearly plagiarism, the theft of another's creative endeavour.

In a rare outspoken critique, label-mate Peter Gabriel accused McLaren of "cultural appropriation", but it's more serious than that, though it clearly is that, too.

Truth is, McLaren and Horn arrived at these shores, and like a pair of modern-day Cecil John Rhodeses, took what they wanted from the "gullible natives" - so grateful to be blessed by the presence of these big white music bwanas they bent over backwards, allowed themselves to be morphed into "McLarenettes" (a contrived group name for the musicians who played the music on the various tracks) - and deprived them of their just composer credits, not to mention money.

Village Voice music critic Robert Christgau wrote of Duck Rock: "When Song for Chango, which has existed since 'before Jesus Christ was born', gets credited like almost all the other compositions to Malc [Malcolm McLaren] and producer Trevor Horn, I wish he'd thought to mention which specific Africans contributed to which specific tracks. Culture may be collective, but (in this culture) wealth ain't," he wrote, giving it a B+ rating.

There is one strange bend in the story - originally, and with some agencies still today, McLaren/Horn remain the only credited composers. But in a most recent copyright search, the names of some African composers have been added to all the songs in question, though there are inconsistencies from agency to agency.

Manele, Vilakazi, Lerole and Masilela have been added to Double Dutch; Shirinda to Soweto; Bopape and Piliso to Jive My Baby; Mankwane and Mkhize to Punk It Up; and Manele to Zulus on a Time Bomb. It seems, at some stage, someone did the right thing. But when were they added? And by whom? Was it part of the settlement conditions? What are the share percentages? Did they get some royalty payments after all?

In the obtuse, secretive and arcane world of music publishing, a place where the sun really don't shine, the answers are hard to find. Stay tuned as the story unfolds ...

• Malcom McLaren died at the age of 64 in Switzerland in 2010.