South Africa: Copyright's Blurred Lines

Last Updated: 20 November 2013
Article by Waldo Steyn

Most Read Contributor in South Africa, November 2017

'As far as I know, publishing someone's content as your own is plagiarism. Or does the Twittersphere have a different set of rules?' So asked a frustrated Business Day executive.  This was, of course, in the context of the 'stolen Tweets' story, one of several copyright stories to make the news recently.

The stolen Tweets story related to the fact that CNBC Africa had copied a number of the Tweets that Business Day had posted in respect of on the mid-term policy speech (the mini-Budget)*. Here's one of them:  'Largest wasteful expenditure is consultant services. Better contract management needed. Proposes stricter control of consultancy fees.'  CNBC Africa admitted that it had done wrong and it apologised. It put the blame on a junior intern and it promised that there would be strict disciplinary action.

So do different rules apply to Twitter postings? The answer's no, and we know this from a case that we reported on some time back, one regarding a press photographer called Daniel Morel. In 2010 Morel took a series of dramatic photos of the Haiti earthquake and posted them on Twitter.  When a media house used these photos without his permission, Morel sued for copyright infringement. He won his case, with the US court noting that although Twitter's Terms of Service may encourage people to share the pictures they post, it does not deprive them of their copyright. It's not a bad thing to remind ourselves from time to time that the internet has not destroyed copyright – something posted on the internet enjoys copyright in the same way that something that's printed on paper does.

But is a Tweet different from a photo posted on Twitter? In order for any piece of writing to enjoy copyright it must be original, which in copyright terms simply means that it must have been the result of the author's own endeavours and not copied. So the law certainly doesn't require the writing to be creative or clever. Yet there is a sort of de minimis threshold, with the law requiring the writing to have at least a modicum of substance.  So, for example, a court held that the song title The Man Who Broke the Bank at Monte Carlo was not substantial enough to enjoy copyright.  Many people feel that advertising slogans are in the same category, which is one of the reasons why companies register them as trade marks. Yet in a recent UK case called Meltwater, the court held that newspaper headlines can enjoy copyright because they do often involve skill and effort (when you're finished reading this article go back to the title and you'll see what I mean!) A Tweet, being anything up to 140 characters, is usually longer than a headline.  And there's some skill involved in getting a point across in so few characters. So yes, a Tweet will often enjoy copyright. But it does of course depend - if you Tweet something like 'I'm really angry' don't expect legal exclusivity!

The stolen Tweets case has been compared to the on-going case of Moneyweb and Media 24. This is the case where Moneyweb alleges that Media 24 has, through its Fin 24 service, infringed Moneyweb's copyright by simply copying parts of its articles, without bothering to summarise them, and without any attribution or links to the originals. Media 24 claims that what it's done falls within the fair copying defence, and that it's part and parcel of the relatively new service of news aggregation. The Moneyweb case is, in fact, closer to the Ferguson case than the stolen Tweets case.

Sir Alex Ferguson, the recently-retired manager of Manchester United, has recently published a book called 'My Autobiography' (no copyright in that title!).  Given Ferguson's long and successful career, as well as his penchant for plain speaking, the book has created considerable interest.  But the BBC managed to annoy Ferguson and his ghost-writer by quoting great chunks of the book. The BBC claimed that this was fair dealing.

So just what is fair dealing?  Well we can look to section 12 of our Copyright Act for an answer, and we'll be told that the copyright in a written work will not be infringed by fair dealing which is for the purposes of criticism, review or reporting current events, if the source is mentioned. But just how much is fair? Well here we can look to the words of one of the UK's greatest ever judges, Lord Denning: 'It is impossible to define what is "fair dealing". It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next you must consider the proportions. To take long extracts and attach short comments may be unfair.  But short extracts and long comments may be fair.'

On to our final story.  Robin Thicke's mega-successful song Blurred Lines, which he performs with Pharrel Williams, is almost guaranteed to make you feel good. Except perhaps if you're one of the children of the late singer and songwriter Marvin Gaye. Gaye's heirs claim that Blurred Lines infringes the copyright in three of Gaye's songs, particularly the song Got to Give It Up.  After allegations of copyright infringement surfaced, Thicke offered the family a settlement which they refused. He then went to court seeking an order declaring that his song doesn't infringe copyright, and the family counterclaimed for copyright infringement.  The matter's on-going.

This case raises some interesting issues related to what's sometimes referred to as the 'idea/ expression dichotomy'. What this means is that copyright protects the expression of the idea but not the idea itself. Thicke admits that he was inspired by Marvin Gaye and he's been quoted in the press as follows:  'Pharrell and I were in the studio and I told him that one of my favourite songs of all time was Marvin Gaye's Got to Give It Up. I was like, "Damn, we should make something like that, something with that groove"'. (He may have phrased this slightly differently in his court papers!). But he claims that the similarities between the songs are confined to 'commonplace musical elements', including the high falsetto voice, vocal and musical layering, and beat. He argues that Blurred Lines was intended to be a tribute to an era and reminiscent of a 'sound' or genre, but that there's been no copying.  As copying is a requirement for copyright infringement, the case will probably go down to expert evidence.

This case is quite similar to a case we reported on some time back, the case of Guy Hobbs and Elton John. What happened there was that Hobbs claimed that he had penned a song called Natasha, which was based on a short relationship he had with a Ukrainian woman whilst he was working on a Cold War-era Soviet ship. He claimed that he had sent his song to Elton John but that it had never been acknowledged. He claimed that Elton John's song Nikita was an infringement of his copyright.  A US court found against him, saying that the shared features - the theme of Cold War love, the concept of unanswered correspondence, the use of generic phrases, and the repetition of the song title in the chorus – were too common and clichéd to enjoy protection.

All in all, an interesting few weeks for copyright!

*See our story on Twitter's IPO to see whether or not Tweet is a trade mark.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions