‘’Why does the Olympics use my voice without telling me?’’
Since Difang Duana heard the Olympics music on the radio and immediately recognized it was his voice in the background. And started this three-year international copyright infringement litigation.
“Elders Drinking Song”, this Amis song, has been passed down for centuries but is rarely known outside. In the beginning, a professor in Ethnomusicology discovered this song during his fieldwork on folk music. Then a foreign band sampled the song into a new song composition and was chosen as the Atlanta Olympics promo song. For the singers, it was gratifying to be heard in the Olympics and let tribal music be known by the world, but they were also worried about why their rights are not valued.
This book was written by Huang Shiu-Lan lawyer, who joined the lawsuit, she recalls the ''Elders Drinking Song'' international infringement lawsuit. From the outbreak of the infringement incident to the decision to litigate, speak out from Taiwan to the international media. This transnational lawsuit prompted Taiwan's lawmakers to put a new law in place: "Protection Act for The Traditional Intellectual Creations of Indigenous Peoples." and add an article protecting "performance" as an independent copyrighted work.
Lawyer Lan Lawyer Lan, the pen name of Huang Shiu-Lan (Jully Huang), is a native of Taichung and has been in private practice in Taiwan for over 20 years. In her younger years, literature and history were her happy pursuits, and it was by chance that she found her way into the field of law. Years spent in the courtroom and at the contract negotiation table have allowed her to see the ins and outs of her clients' lives, experience the darkness of human nature, and ponder the pace and will of the universe. Often, in the course of litigation and disputes, Lawyer Lan holds the client's hand through difficult times, helping to clarify the real expectations of the parties and guiding them on the right path to resolution in conflicts of a cultural and creative nature. As a result, her intervention helps creators repair or end business relationships and open new chapters in their lives. Lawyer Lan balances the stress of her legal practice with a healthy spiritual dose of travelling, writing, enjoying ancient artifacts, and watching movies and TV shows. In recent years, she has been teaching "Intellectual Property Rights and Contract Negotiation" in the post-graduate program of the Department of Filmmaking at the National Taiwan University of the Arts, serving as an associate professor. When she isn’t working, she’ll likely read or write, sharing her insights into the legal world.
I Disclose the Hidden Voice from East Coast Taiwan When the Indigenous music echoed in Taitung East Rift Valley and the song flew from mountains to the sea, little did the elderly couple singing “Elders Drinking Song” could imagine, this Amis* song, which has been passed down for centuries, would be presented at the Olympic Games! Not to mention to give rise to a cross-border copyright infringement lawsuit lasting three years long.12 Before I get the phone call from Landy**, the promotional video of Olympics Special Report has been showing in front of me on the evening news of China Television Company (CTV) for three days, and I have no idea how many times I’ve heard this Olympics promotional song already. I only find this sonorous voice a perfect match for the feature of the Olympic Games resembling peace, competition, tolerance, and brilliance. It never crossed my mind that it would be oriented from Taiwan’s Amis folksong. While Landy is about to disclose this breaking news in his usual manner, calmy and with a low-pitch sound, I could still sense some tension in the tone that puts people under pressure. “Lawyer Huang, do you remember Mr. and Mrs. Duana, the Indigenous artists who signed the contract last month? Something happened ...” He pauses. Of course I remember them, how can I forget? The couple are the oldest artists that Magic Music has ever signed a contract with. When Mr. Difang Duana put his signature on the agent contract, he was already 73 years old! At first, Rock Records Group had some concerns over the risks and the investment feasibility. But Landy never gave up on his master plan promoting the Indigenous music and combing the folksongs into a collection named “Het Eyland Formosa.” Landy’s persistence eventually convinced Rock Records Head, so an idealistic rather than realistic decision was made to fulfill this music lovers’ dream. Yet, there was still something to overcome. The artist couple not only have had high respect from the tribe, but also been found the best singers among Amis people. It was not that easy to get them on board. It took Rock Records a lot of effort and time to knock on the tribe’s door and show its sincerity to the couple and their family. Finally, the couple came to an agreement, accepted the offer and signed the first artist agent contract in their life. So this contract is still fresh from the oven, what can go wrong? A contract dispute? I don’t think so. I just finalized the contract with in-house legal a few months ago, and the contract underwent several discussions and revisions between us. I don’t think the contract can go wrong as soon as it leaves the table. Being a lawyer requires a strong heart. A lawyer has to be prepared for any unexpected and extraordinary disputes. Although contract reviewing does not require an immediate response like in the courtroom, you still can see if this is a capable lawyer once the contract is executed. If the contract terms, conditions or wordings are illogical or ambiguous, problems will arise in the execution, which triggers more significant disputes. So basically, you can tell a good or bad contract drafting by the outcome of the contract execution. Unavoidably, I start to doubt if I overlooked anything in the contract... Why My Voice on TV? It turns out it has nothing to do with the artist agent contract; it is something much more unbelievable. “Lawyer Huang, have you watched the special report about the Olympic Games on CTV? The background music seems the song sung by Difang Duana. At this moment, we are trying to get more details to confirm it.” Says Landy. “Yes!” I reply, “I’ve been watching the special report in the past evenings with Shen Chun-Hwa as the anchor. Are you talking about the song they play in the Olympic athletes’ clips?” I try to recall. “Is that Amis music? I can’t really tell. I just feel it’s so sonorous, powerful, and so beautiful! How did you learn that it is their voice? Did you get this information from the Amis artist or their tribe?” While recalling the footage on CTV evening news around 19:25 last night, I find it hard to believe that the Olympics is using a Taiwanese Indigenous song in their promotional music. How come? “Difang Duana just called me from Taitung and said that two days ago other tribe members heard the Olympics music on the radio and immediately recognized it was his voice in the background. Then they hurried to tell Duana about this.” Landy said. “Watching CTV’s special report with the family, Duana and his family confirmed it is his voice, and he said he feels confused and offended - Why does the Olympics use his voice without telling him?” “They contacted a Taitung councilor for help. After knowing what was going on, the councilor suggested that engaging an attorney is a better way to handle a legal matter like this as it looks like a copyright infringement, which is out of reach for a role of legislator.” Landy continues. “Mr.Difang Duana doesn’t know any lawyer. But he remembers he has a contract with us and that is why he called. The staff in our Music Production Department just informed me of this incident, and I reported to Sam*. And Sam would like me to get the answer from you. So, Lawyer Huang, is this a music copyright infringement? What should we do?” By now, Landy finally gets me a clear overview and background explanation. 3 Whose Voice is This ? So now it’s my turn. First thing first, I need to remind them of holding the facts tight and get experts to testify the evidence. “Before we can determine if the Olympics promotional song has committed copyrighting infringement, we need to verify if the voice in the song is Difang Duana’s. Do you have the Olympics promotional video and Difang Duana’s recording or CD? You must run audio forensics with precision equipment to ensure that the voice in both clips comes from the same person before jumping into any conclusion.” Then I shot the other question. “It seems odd to me that there was not any recording made by your company for Difang Duana yet, so how did the Olympics obtain Difang Duana’s recording for the song? Did he make that recording before signing a contract with your company?” “Right now, we have no idea how they got Difang Duana’s work. According to his family, the song the Olympics used is called “Elders Drinking Song,” which is sung by Amis every year during the harvest festival. Maybe someone taped it during live performance or specifically invited Mr. and Mrs. Duana to sing. Nothing is certain for now. Things just came out, and information we have is very sketchy.” Nevertheless, armed with rich crisis management experience, Landy knows how to speed things up, so he continues. “I already had my staff record the background music of CTV’s Olympics Special Report and also asked Difang Duana’s family to send us his previous recordings from Taitung so we can run audio forensics. The tapes should arrive this afternoon. Lawyer Huang, are you available this evening? Can you be present with us during the process of voice identification? Then, we can go from there for our discussion on handling the current situation.” “Alright, I’ll be there at 4:00 p.m.” After this phone conversation, I urge my assistant to gather information about the Olympics promotional video. And the task for me is to review the applicable laws regarding music and audio work, especially if there are some special regulations governing Indigenous music. Not long, it strikes me since this infringement occurred in the US, I should be searching for the Copyright Law of the United States. Suppose we have this copyright infringement case, then the question to ask is - Who are the victims? What right is infringed?” The clock is ticking. Before a legal framework can be built up in my head, I need to hustle up to the meeting at Magic Stone Music. When I set my foot into the office, I see Landy listening attentively with a professional headphone in front of a large stereo behind his desk. As he turns around and notices me, he at once unplugs the headphone and plays the music through the speakers for me. “Lawyer Huang, come to listen to it,” Landy explains. “The is Difang Duana’s voice in the song, “Return to Innocence” of Enigma’s album, “The Cross of Changes.” You can feel the music flows in a very natural and smooth way. The Indigenous song “Elders Drinking Song” begins following the Intro, seamlessly mixed with the English part. Total 4 minates 15 seconds long. Then Landy plays the Olympics promotional song. The music itself of both pieces is identical, except that the promotional song is shorter. Finally, Landy plays both songs synchronously, and they overlap each other perfectly. You cannot tell one from the other. Based on his expertise in the judgment of music performance, he can conclude that they are the same song.
Preface Elders Drinking Song-Everlasting Melody Is Never Gone While reviewing the international litigation proceeding for “Elders Drinking Song”, which was taking place more than twenty years ago, I can still remember this case like it was happening yesterday. In 1996, while the Atlanta Olympics’ promotion song was ringing in everyone’s ear, an East-West cultural warfare - a tension between Indigenous People and modern record labels, and a confrontation between Amis folk song and western popular music - began, which brought shame on the Olympics and made its tune go off-key. A lawsuit arose, and the final justice had waited long to come after a tangle of years of litigation. Elders Drinking Song has been passed among Amis People in Taitung for a long time, but it was not known to most people until it was launched as the promotion song for Olympics in Atlanta in 1996. While the sonorous music was presented on the highest global sports stage, having the world appreciate the fullness and pride of the sound, yet, people remained unaware that it was oriented from the valley in Taitung, Taiwan. In the summer of 1996, it was with mixed feelings that Mr. Difang Duana (Kuo Ying Nan), an Aboriginal singer from the Amis tribe, heard his voice was used by the German band Enigma without his permission. The positive side is that the world stage’s spotlight descended on the tribe’s heritage, which made him so proud. The negative side is that this disrespectful behavior violated his right, which worried and offended him at the same time. In the beginning, facing the infringer’s aggression, arrogance and rude attitude, Mr. Difang Duana was not expecting justice with his poor resource; luckily, Rock Records and Magic Stone Music were determined to support their singer’s right and interests at full power. Mr. and Ms. Duana had never stepped a foot into the court before, but they decided to file this lawsuit in federal district courts in California. With the trial judge’s strong push and both parties’ lengthy negotiation, a settlement was reached after three years of suffering. This led to the enactment of Taiwan’s Protection Act for the traditional intellectual creations of indigenous peoples and prompted the amendment of the Copyright Act, which additionally provides protection for performances. Also, Mr. Duana’s international infringement case has become a leading precedent in intellectual property law, acknowledged by law schools and the music industry. Nevertheless, very little information about this case is available in Europe and the US, where this infringement occurred. Outside Taiwan, there appear to be some misunderstanding narratives spread and even untruthful records where the lies carry more weight than the fact! As the lawyer mainly in charge of the litigation, I feel my responsibility and urge to clarify this case. Particularly, this has to be told in a common language so everyone can read the whole story and figure out how the rights were violated. I also need to address the importance of respecting Indigenous songs and culture, and I hope the beautiful music brings true harmony and happiness to the world.
Content Forward-Lee Daw Ming, Professor How I Come to know Lawyer Huang Shiu Lan
Forward-Ya-Li Huang, Film Director Rethinking the Relationship between Culture and Law
Forward-Xiong Ru Xian, The director of Wild Fire Music What Follows the War of Honor
Preface Elders Drinking Song -Everlasting Melody Is Never Gone
1.Disclose the Hidden Voice from East Coast Taiwan Why My Voice on TV ? Whose Voice is This ? Is This A Case of Infringement? 2.Here Comes Copyright Law Protection Our Kickoff Meeting in a Late Night A Quick Timeline Overview The Right Person and the Right Questions 3.Anyone Ever Asked the Performers? A Late and Unjustifiable Offer Lost in Translation, or Lack of Awareness? What Mr.Duana Says A Walk-through of Facts in the Case 4.Time to Speak Up Different Voices Under the Spotlight Press Conference Boosted by Taipei City Government First Approach to Infringing Parties 5.Can We Achieve Settlement Before Going to Court? First Denial Legal Action in Homeland Missed Opportunities A Big No, Loud and Proud At All Costs 6.Justice Doesn’t Come Cheap Look for the Right Court, the Right Jury, and the Right Lawyer Litigation Schedule Tasks After Tasks A Great Song-Searching Team Our Expert Witness Professor 7.Let’s File Our Complaint Opposing Parties, Get Prepared! Filing Lawsuit in France? Fast Counterattack Questions and Answers, Back and Forth More Defendants Rolling the Snowball 8.The Ultimatum