South Africa: Copying Music: A Stairway To The Court Room

Last Updated: 14 July 2016
Article by Rachel Sikwane

Most Read Contributor in South Africa, September 2018

Two recent high-profile cases involving popular songs have placed the spotlight on copyright issues.

In the first of these, in California, a Los Angeles jury has decided that Led Zeppelin's 1971 rock classic Stairway to Heaven did not infringe the copyright in a 1967 song called Spirit by the band Taurus. The case centred on the opening chord sequence in Stairway to Heaven, which the jury concluded was not "intrinsically similar" to the sequence in Spirit. Led Zeppelin had argued that the chord progression is a common one that has been around for many years.

In the second case, also in the United States, the writers of a song called Amazing, which was performed by 2010 X Factor winner Matt Cardle, have sued golden boy Ed Sheeran, seeking damages of US$20-million for alleged copyright infringement based on supposedly similar chord progressions and melodies. The alleged infringement occurs in Sheeran's famous song Photograph, and it's hard to resist the urge to comment on the appropriateness of the two song titles. According to reports, the attorney representing the writers of Amazing is the same attorney who represented Marvin Gaye's family in the famous case involving the song Blurred Lines.

South Africa has also seen its fair share of copyright cases of late. Some of these make it clear that copyright isn't limited to the arts, and extends to the very mundane. One case involved copyright in a system of numbers that identifies doctors (Board of Healthcare Funders v Discovery Health Medical Scheme and Others), while another involved copyright in football fixtures (National Soccer League T/A Premier Soccer League v Gidani (Pty) Ltd). In addition, there was a case involving copyright in English/Afrikaans school dictionaries (Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd), and two cases involving copyright in software, where defendants were government institutions who showed a lack of appreciation of software copyright (Attachmate Corporation v Minister of Water and Environmental Affairs and Quill Associates (Pty) Ltd v Randfontein Local Municipality and Westonaria Local Municipality).

In terms of the arts, there was a case that involved high drama at the Labia Theatre in Cape Town with attorneys arriving shortly before a documentary was about to be screened and persuading the theatre owners not to proceed on the basis of alleged copyright infringement. As for music, copyright has featured strongly in cases and developments involving the compulsory licensing that occurs through the Copyright Tribunal and that affects businesses such as retailers, as well as the "needletime rights" that affect broadcasters.

Most recently, there was yet another South African case involving copyright in news articles, and the use of such articles by an online news aggregator (Moneyweb (Pty) Limited v Media 24 Limited and Another). In this case, the court considered a range of issues, including the fact that there's only an infringement if a substantial part of the work is copied, the "news of the day" and "fair use" defences that apply to certain works, and acknowledgment of source by way of hyperlinks.

These cases highlight that copyright is often overlooked or misunderstood. This may be put down to the fact that copyright is an unregistered right and therefore is not something that can easily be checked. The fact that the digital world has made copying incredibly easy, and has arguably changed perceptions of, and attitudes towards, copyright, could also be contributing factors.

These cases also highlight a number of basic copyright principles, such as:

  • copyright exists in particular types of works specified in the Copyright Act, 1978, such as literary works, artistic works, musical works, sound recordings and films.
  • copyright can overlap with other intellectual property rights. An obvious example would be a logo, which enjoys copyright protection as an artistic work and which can also be registered as a trade mark.
  • copyright comes into existence the moment the relevant work is reduced to a material form. This is sometimes expressed as "there is no copyright in ideas."
  • no registration is necessary, or indeed possible, for copyright in South Africa. There is one exception to this – copyright in films can be registered, but this isn't necessary.
  • the owner of the copyright is generally the creator of the work. There are, however, exceptions that relate to employees and people who are commissioned to create certain works.
  • copyright is infringed only if there is actual copying. Copyright is not an absolute right and doesn't prevent coincidental similarity.
  • there is only copyright infringement if a substantial part of the work is copied. In this context, "substantial" refers to quality rather than quantity, so copying a small, yet very important, part of a song could constitute an infringement.

The moral from these cases is that copyright should not be overlooked – either by copyright owners, who may have assets that are worth a great deal of money; or by those doing the copying, who may face a significant claim for damages.

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.

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