In this article, we discuss an unusual and interesting copyright story that recently came up in South Africa.

Recreating famous artworks

An article that appeared in the South African media raised some interesting copyright issues to consider. It deals with the fact that a South African business-woman, Wineen Swart, has created a product that enables ordinary mortals to recreate famous artworks. Such works that can be recreated were originally made by heavyweights such as Vincent Van Gogh, Henri Matisse, Claude Monet and Edvard Munch. There are also artworks by some South African big-hitters such as Irma Stern and Pierneef, the man who painted South Africa's most expensive artwork, Farm Jonkershoek with Twin Peaks Beyond, Stellenbosch, which sold for a cool ZAR20 million.

No artistic skill required

This product's significant advantage is that it enables individuals without any artistic abilities to recreate world-famous masterpieces. That is because this is a paint by numbers product. What you get when you buy this product is a canvas, paints, brushes and a wall-hanging kit. And it's not at all expensive – the Paint by Numbers kit for the Pierneef sells for a mere ZAR400, which is very little if you consider what the original sold for. It seems as though Paint by Numbers became popular in South Africa during Covid-19, when we had very little to do.

Copyright

Artworks obviously enjoy copyright protection and this Paint by Numbers story presents an ideal opportunity to discuss some basic copyright issues. Many of you will already know this, but I should start off by saying that South African copyright law is in a state of transition. What I say in this article is based on South African copyright law as it stands now, as per the Copyright Act, 1978.

What follows is a very brief summary of some copyright basics, with an emphasis on artistic works:

  • works: Copyright protects different categories of what the legislation calls 'works'. Categories of works that can be protected by copyright include written works, films, sound recordings and computer software. But the category that is most relevant here is artistic works, which of course covers paintings;
  • registration: In South Africa, copyright protection is automatic and it comes into existence when the work is created - no registration of copyright is required, or indeed possible. There is one exception to this - registration is possible (but not compulsory) in the case of cinematograph films;
  • first ownership: The copyright in a painting (a type of artistic work) belongs, in the first instance, to the person who painted the work;
  • transfer: Copyright in an artistic work can be transferred – it can, for example, be sold or licensed, and it can be passed on to an heir;
  • duration: The copyright in an artistic work lasts for a period of 50 years from the date of the death of the artist. This of course means that there is no longer copyright in the works of the various famous artists I mentioned earlier.
  • copying: An example of an action that is restricted by the Copyright Act is the unauthorised reproduction (copying) of the work. Anyone who copies an artistic work without consent can be sued for infringement;
  • copying of a substantial part: In order for there to be an infringement, copying of the total work is not required - there will be infringement if there has been copying of a material part of the work;
  • joint liability: The person who does the unauthorised copying of the work is, of course, liable for any infringement, although the law does make provision for contributory infringement and joint liability where multiple parties are involved. Given that the artworks in issue here are all seemingly out of copyright, contributory infringement on the part of Wineen Swart will not be an issue here.
  • court: If there is an alleged infringement, the matter will be decided by the High Court; and
  • foreign precedents: In a country where there are relatively few copyright court judgments, foreign precedents will often be persuasive, most particularly British judgments.

This article highlights possible copyright issues related to the reproduction of famous artworks. While copyright protects artistic works, the Paint by Numbers approach raises questions about potential infringement. It is a reminder of the importance of copyright as an essential intellectual property right.

Copyright matters

Copyright stories don't make the news nearly as often as trade mark (branding) stories do, so we try to report on them whenever they arise. If reading this article has made you think "Hey, copyright is clearly a very important right, I should be paying more attention to it..." guess what, you're right on the Monet!

Reviewed by Waldo Steyn, an Executive in the ENSafrica IP department

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.