Most Read Contributor in South Africa, September 2016
A drama recently played itself out at the Labia Theatre in Cape
Town. No surprise there you say, that's the kind of thing that
happens at theatres. But this was a bit different. That's
because lawyers representing someone who claimed to be the owner of
the rights to a film that was about to be screened – a
documentary called In the Land of Ou Makai: a Bushman
Odyssey – persuaded the owner of the venue that the
screening would be unlawful, and that she would be well advised not
to go ahead with it. Great disappointment for the assembled
Cases involving rights to films don't come up often in South
Africa. Films are protected by copyright law, an area of the law
that in South Africa doesn't require registration. It is, in
fact, possible to register the copyright in a film in South Africa,
but it certainly isn't necessary because the registration
doesn't create the copyright; it simply makes it easier to
prove the copyright.
The owner of the copyright in a "cinematograph
film" (to give it its full name) has various rights. One
of these is the exclusive right to reproduce or make copies of the
film. Another is the exclusive right to show the film in public.
Hence the claim that the screening of the documentary at the Labia
would infringe copyright. The owner of the copyright can bring a
court action for an interdict (injunction), damages and legal costs
in cases where the copyright is infringed – which probably
explains why the owner of the theatre decided to follow the
But who owns copyright? In the case of a film, the
"author" of the film is the first owner –
the reason why we speak of a first owner is, of course, because
ownership can be passed on, for example by contract (called an
assignment), or in a will. The author of a film is said to be the
person responsible for "the arrangements for the making of
So the author of the film – the person who made the
arrangements for making it – is the first owner of the
copyright. But there are some exceptions to this. These are
contained in section 21 of the Copyright Act, 1978. One of these
says that if there are joint authors, then there's joint
ownership of the copyright. Another says that if one person
commissions another person to make a film and pays the filmmaker
for his or her work, then the person who commissions the film is
the owner of the copyright, rather than the filmmaker. A further
exception says that if a person makes a film in the course and
scope of their employment by another person, then the employer owns
So what happened in the case of the documentary? It's not
entirely clear from the press reports, but it appears that the
person who persuaded the theatre to cancel the showing, a certain
Patricia Glyn, certainly had an involvement with the documentary.
Just what the nature of this involvement was, however, seems to be
in dispute. It's clear that she wasn't a joint author of
the film. What she claims is that she employed the filmmaker, a
certain Richard Wicksteed, to make the documentary, thus making her
the copyright owner by virtue of the employment
Not so, says Wicksteed, who says he was contracted by Glyn as an
independent filmmaker. This might, of course, still make Glyn the
copyright owner on the basis of the commissioned work exception,
but Wicksteed claims that he wasn't paid what he was due, and
that he had to put R40 000 of his own money into the project.
Which, if true, may well kill off the commissioned work exception.
The press reports suggest that Wicksteed's case goes beyond
this, and that he feels that the written contract between the
parties actually allows him to use footage in his own
All in all, a messy affair. One that might, of course, end up in
a court of law. And one that is all too common in matters involving
copyright. Why this is the case isn't really clear. One reason
may be that people often aren't even aware that copyright is
involved. Copyright isn't confined to films, of course;
it covers all sorts of works, including written works (including
advertising copy), artistic works (including logos), photos, music,
sound recordings and computer software. Another reason may be that
few lawyers know much about copyright, so they don't always
appreciate the issues involved.
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