Imagery is a valuable commodity. Whether you produce or commission images to promote your products, services or properties, copyright is involved. Amina Suliman* discusses copyright law.

Photographer Shaun Earl Harris is suing the South African government for an astonishing R2.1 billion for copyright infringement relating to its alleged unauthorised use of a photograph featuring Nelson Mandela that he took. “Copyright is what enables a photographer to make a living from taking photographs,” he says. “What’s the use of taking pictures if they steal your copyright and you can’t live?”

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

A relatively recent example that illustrates the value of copyright ownership is the famous Harry Potter series. Author JK Rowling licensed her copyright to Bloomsbury Publishing, permitting it to print and distribute her books in return for royalty payments. The first book in the series was an enormous success and the royalties and advance payments she earned helped her out of her impoverished state. Six more books and a film series among other things followed, which were met with even more success. JK 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 their own advantage and prevent the unauthorised reproduction or adaptation of their work. But to rely on copyright, it’s necessary to firstly prove copyright subsists in the work in question and secondly to prove ownership of the copyright in the work. There are various types of works that can qualify for copyright protection. They include literary, musical and artistic works, cinematographic films, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs. A book constitutes a literary work, while a photograph is a type of artistic work.

Before copyright can subsist in and be conferred on a work, certain requirements must be met. The main requirement is firstly that the author of the work or person who first made or created the work in question was a South African citizen or domiciled or resident in South Africa when the work was created and the work must have been first made available or published in South Africa or another Berne Convention country. Secondly the work must be original, and lastly it must be in a material form, for example written down or recorded.

While the first and last 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 doesn’t mean it 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’s 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’s 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 a work, provided they haven’t assigned or transferred some of or all their copyright to someone else. However there are exceptions, for example where a work is created by an author during their employment under a contract of service or apprenticeship. In this case the copyright would vest with the employer.

In the case of photographs, copyright vests with the photographer, who is the author, except where someone commissions the taking of a photograph and pays or agrees to pay for it in money or money’s worth and the photograph is taken pursuant to that commission. In such a case the copyright would vest in the person who commissioned the taking of the photograph.

As the owner of copyright in a work, you’re entitled to reproduce or adapt the work in any way you like, sell it by assigning part of or all your copyright in a work to someone else or license third parties to make use of some of or all your copyright. For example an author of a book could license a publishing house to print and distribute their book, a film studio to adapt the book into a cinematographic 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 the work by reproducing it or adapts it without the owner’s consent or authority, this would constitute copyright infringement and that party could be interdicted or sued for damages or reasonable royalties.

This is just a brief overview of copyright. If you have any works that may be subject to copyright, it’s worth your while to consult an intellectual property law attorney for advice on how to protect these works.

* *Amina Suliman is a senior associate at Adams & Adams.

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