PHOTOBOMBED? PROTECTING YOUR COPYRIGHT

It was reported some time ago that a photographer named Shaun Earl Harris is suing the South African government for an astonishing amount of R2.1 billion for copyright infringement relating to the government’s alleged unauthorised use of a photograph featuring Nelson Mandela that Mr. Harris had taken.

Mr. Harris made an impactful statement that got me thinking – “Copyright is what enables a photographer to make a living from taking photographs. What is the use of taking pictures if they steal your copyright and you can’t live?”

As copyright is not a registrable right (unlike a trade mark, patent or design) and can be quite difficult to understand, it is often overlooked.  However, its value should never be underestimated.

A poignant story that illustrates the value of copyright is that of J K Rowling, the author of the famous Harry Potter series.  Ms. Rowling licenced her copyright to Bloomsbury Publishing by permitting it to print and distribute her book in return for royalty payments.  Of course, the first book was an enormous success and the royalties and advance payments Ms. Rowling earned helped her out of her impoverished state. Six more books followed as well as a film series and much more, which met with even greater success.  J K Rowling is now a very wealthy woman – thanks to copyright.

Essentially, copyright entitles the owner of the copyright in a “work” to exploit that work for his/ her own advantage and to prevent the unauthorised reproduction or adaptation of his/ her work.

However, in order to rely on copyright, it is necessary to, firstly, prove that copyright actually subsists (i.e. exists) in the “work” in question and secondly, ownership of the copyright in the work.

There are various types of “works” that can qualify for copyright protection.  Briefly, the works in which copyright can subsist are the following:  literary works, musical works, artistic works, cinematograph films, sound recordings, broadcasts, programme-carrying signals, published editions and computer programmes.  A book would, of course, constitute a literary work while a photograph is a type of artistic work.

Before copyright may subsist and be conferred upon a work, certain requirements have to be met.  The main requirements are as follows:

  1. The author (i.e. the person who first made or created the work in question) must have been a South African citizen or domiciled or resident in South Africa when the works were created or the works must have been first made available (i.e. published) in South Africa or another Berne Convention country;
  2. The work must be original; and
  3. The work must be in a material form (e.g. written down or recorded, etc.).

While the first and third requirements are usually not that difficult to understand or prove, the second one presents more difficulty.  In order for copyright to subsist in a work, the work must be original.  This does not mean that the work must be unique, novel or inventive but simply that the work must have been the product of the author’s own labour, skill and effort.  To prove that a work is original, it is usually necessary to obtain evidence from the author of the work relating to the creation of the work in question.

Once the subsistence of copyright in a work has been established, it is then necessary to consider who the owner of the copyright in that work is.

The author of a work is usually the first owner of the copyright in such work, provided that he / she has not assigned (that is, transferred) some or all of his / her copyright to someone else.  However, there are exceptions such as, for example, where a work is created by an author during his / her employment under a contract of service or apprenticeship.  In this case, the copyright would vest with the employer.

In the case of photographs, copyright would usually vest with the photographer (who is the author).  However, there is an exception to this as well – where a person commissions the taking of a photograph and pays or agrees to pays for it in money or money’s worth and the photograph is taken pursuant to that commission, then the copyright would vest in the person who commissioned the taking of that photograph.

As the owner of copyright in a work, you would be entitled to reproduce or adapt the work in any way you like, sell (by assigning) part or all of your copyright in a work to someone else or licence third parties to make use of some or all of your copyright.  For example, an author of a book could licence a publishing house to print and distribute his/ her book, a film studio to adapt the book into a cinematograph film and a playhouse to adapt the book into a theatrical production – much like J K Rowling did.

Of course, if someone copies or commercially exploits (i.e. reproduces) or adapts the work without the owner’s consent or authority, this would constitute copyright infringement and that party could be sued for an interdict, damages or reasonable royalties.

The above is a rather simplistic account of copyright.  If you have any works that may be subject to copyright, it may be well worth the effort to contact your IP attorney for advice on how to go about protecting such works.

by Amina Suliman

AMINA SULIMAN

Senior Associate
Trade Mark Attorney

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