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 Comments on the Copyright ActSection 1 - DefinitionsSection 2 - Works eligible for copyright Section 3 - Copyright by virtue of nationality, domicile, or Residence, and duration of copyright Section 7 - Nature of copyright in artistic works Section 13 - General exception in respect of reproduction of works Section 15 - General exceptions from protection of artistic works Section 20 - Moral Rights Section 21 - Ownership of Copyright Section 22 - Assignment and licences in respect of copyright Section 1 - DefinitionsSome definitions are self-explanatory and will not be commented onadaption - An adaption, or changing, or transforming of an artistic work is when an artist uses an original, or "copy", or "reproduction" of another artist's, or photographer's work and paints a painting from it in such a way that if the two, (ie, the original and the "new" work) are put side by side it would instantly be recognized as being a copy of the first, even if changes have been made in the copy to try to disguise this fact. This is the acid test of whether your work would be classed as an infringement. A Court of Law will decide if the salient and major features in the copy are the same as that in the painting of the copyright owner. If you decide to use someone else's artwork or photograph as reference for your own painting, then make sure that you change all the major original features (even if this is what attracted you to it in the first place) so that your painting is not recognized as a copy of the other. For you NOT to infringe copyright your artistic work MUST be SUBSTANTIALLY changed from that of the original features in the original, and be not easily recognisable as part of the copyright work in question. In the comments on other sections of this Act we will further elaborate on "adaption". artistic work - [paintings, sculptures, drawings, engravings and photographs] these are self-explanatory and need no comment. However, we need to comment on "irrespective of artistic quality". Often we see a card, for example, with a wishy-washy painting or sketch on the front thereof and think, "I can do much better than that!!!" You may very well make a 1000% improvement to it with your painting, in whatever medium you may choose, but, if the original or substantial features of the wishy-washy card artwork is still there, then you have definitely infringed either the card owner's copyright, or the card publisher's copyright, or perhaps both's copyright if the publisher has the secondary copyright on the card. Copyright infringement is, and can be, a tricky and complicated issue. Think of it this way: you have painted a fabulous scenery (landscape) and it was published in a certain Calendar. Some time later you see an exact copy (terrible quality) of it published (without your permission) as part of another calendar for a very well-known institution. In the write-up in the calendar this particular artist gave absolutely no reference or credit to you, as the original artist. It implied that she was the original artist of that work. If the artist concerned signed a release form stating that the painting was her own "original" work then she could be charged for perjury as there was absolutely no attempt to adapt or make it different to the original artwork. It was an unmistakable copy of the original. author - Here author is meant the originator, or the FIRST person to create the artistic work, be it a painting, a book, a photograph, etc., It must be the first creation work that is copyrightable according to the ambit of the Law; in this case, the copyright Act. If not, then you cannot claim authorship over the work. If you "copied" some's work and have not SUBSTANTIALLY adapted it so that it is not recognisable from the original, then you are a "copier" and NOT the author of such work. In other words the substantial part of such work MUST be the product of your own imagination and skill. The author of a photograph is the one who first took the picture via a still camera, video camera, digital camera, etc. If he is the negative holder of a still photograph, or tape holder of a video camera or disk holder of a digital camera, then he is normally the copyright holder, and, unless licence for that particular photograph has been assigned to someone else, in writing, only he has the authority to produce copies from such sources. copy - To copy something is to produce, by any means available, whether a photocopy produced mechanically, or even taking a photograph of such artistic work. The negative film is a copy of such work, albeit in negative form, from which multiple copies may be made. The resultant prints or video tapes of disks or computer files are what is called "positive copies", whether in colour or in black and white. Any such copies taken and/or printed without the copyright owner's permission is an infringement of the copyright Law. One of the biggest traps an artist falls into is the copying of photographs out of magazines, books, periodicals, etc. The safest way to overcome copyright problems is to contact the copyright owner for permission. In general you will find most artists and photographers very willing to give their permission, sometimes with certain limitations. Some will charge you a once-off fee and maybe supply you with either the negative of a similar photograph (not the one published in the book - that one was contracted to the publisher) or another photograph with a letter assigning you full, or partial, copyright to do with it as you will. Some will ask you to give them credit of authorship, ie, you must physically name the originator of the photograph, etc., such as "from a photograph by Dennis Clark". Not doing this will cause you to infringe the copyright. Only you can decide!!! drawing - Any drawing or sketch or preliminary sketch made by whatever means by the author in the preparation of his artistic work is copyright by the Act and may not be copied even if the sketches were not eventually used in the finalization of the intended artistic work. They remain the property of the copyright owner. When the word "includes" is mentioned in a sentence, it means there are thought or descriptions inferred which precedes the word "includes". Anything AFTER the word "includes" is taken to also be part of, and attached to, the preceding description(s). From this it can be inferred that if someone has "doodled" (which is a thought(s) materially expressed) on a piece of paper, the copyright of that "doodling" belongs to the doodler, and you may not take it and claim it as your own, except with his express written consent. Coming back to the part "drawing" in the Act itself, any type of drawing or sketches made by pencil, pastel, pen, etc., precedes the word "includes" in this section of the Act. exclusive licence - What is being described here is that the owner of a copyright article or work has the right to transfer full copyright to a third party for that party's exclusive use. The original owner now has no more right to that article or work in question: Provided a written contract has been drawn up and signed by both parties. The Law does not recognize an oral contract in this case. However, the copyright owner also has the right to assign exclusive licence of part of the copyright in question. For example, a publisher wants to make a calendar of some of my paintings. I can give the publisher "exclusive licence" over any other publisher in the making and printing the calendar. I may limit the printing to a certain number of copies and/or for a limited time period, after which full copyright reverts back to me. Actually this is giving the publisher "exclusive licence" to part of the copyright, ie, to the use of making a particular calendar only. This is a simplistic explanation and you should obtain the help of a copyright attorney to draw up a proper contract for you so that you do not inadvertently sign over the full copyright to the publisher and also that you receive your rightful share of the profits (royalty). infringing copy - This simply means a copy [refer to definition of "copy"] of a work that has been infringed, ie, a copy that has not complied with the Act as far as copyright is concerned, and without the knowledge or consent of the copyright owner. This applies also to a copy of a film or video and any still photographs grabbed off a film or video without the consent of the copyright owner. reproduction - (a) Dictionary meaning : to produce again; to produce a copy or representation. (b) The term "reproduction" of an artistic work, for example: a certain church denomination has a statue(3-dimensional) on its (private) property. You take a photograph of it from the street without the priest's permission (infringement). You have the film developed and have a print made of it (infringement), also without his permission (infringement). You make a drawing or painting (2-dimensional) of it without his permission (infringement), and your artistic work is published in a magazine without his consent (infringement) and you get paid for it (infringement). In this example you have infringed the owner's copyright at least 6 times! Similarly, if you take any well-known comic character (2-dimensional) and convert it, without consent, into a 3-dimensional form (statue) (infringement), make a mould of it (infringement) and subsequently sell these reproduced statuettes (infringement) for personal gain (infringement). Here we have at least 4 infringements of the copyright Act! In other words you may not reproduce any work without the consent of the copyright owner. This includes the making of a mould off another person's work, and the selling of articles made from the illegal mould. These two examples show just how easy it is to infringe on another person's copyright. writing - This is basically self-explanatory and includes this complete article, or any other article(s), present and future [not the Act portion - which in itself is not copyright by virtue of section 12(8)(a) of the Act] that has, or will be written and developed by The Paint Basket Trust. No portion (part) of it (them) may be reproduced, copied, published, by any means whatsoever without the written consent of the Trustees of The Paint Basket. Back to Top Section 2 - Works eligible for copyrightAccording to the Act only ORIGINAL works are eligible for copyright, and only if "the work has been written down, recorded, represented in digital data, or signals or otherwise reduced to material form". In other words a thought, or a brilliant idea on its own is not eligible for copyright as such. If you express an idea for a fabulous painting to someone and that person takes your idea and puts it to paper or canvas, or in any other material or tangible form before you do, then that person's work is eligible for copyright. If you, a short while later, paint a similar painting (unless there is a substantial difference) then it may be that have infringed the other party's copyright, even though the original idea may have been yours in the first place!Where possible keep all your written down ideas, preliminary and final sketches in a safe place. TIP: Add dates and your name on them! If you have produced a painting from someone else's photograph or painting then such painting is not eligible for copyright unless it can be proved to the contrary, and shown, to be not recognisable from the original painting or photograph. You cannot, and may not, copyright, or claim copyright, on your work that infringes the copyright in some other work. Back to Top Section 3 - Copyright by virtue of nationality, domicile, or Residence, and duration of copyright(a) According to this section you either need to be a South African citizen, and if not a S.A. citizen, then at least living in, or a resident in the Republic in order for you, as an individual, to claim copyright in or on your work(s).(b) The way I read it: unless a company or business or body corporate is a legally registered body according to the laws of the Republic, it cannot claim copyright in the name of that company or business, in which case the copyright will have to be under the name of an individual. In these circumstances the individual has sole copyright of the work(s), to the exclusion of all others, unless the copyright is registered jointly. Duration of copyright - Here is a clause that will break the heart of many an artist! The copyright of an artistic work expires only 50 years after the death of the artist or copyright owner!! In other words, copyright continues during the life of the author of the work plus 50 years after his/her death. Let's say that a particular work gets published in a magazine 49 years after the death of the artist, and with the consent of the copyright owner (his estate) then that published "copy" or "reproduction" is copyright for a further fifty years from the date of publication. This becomes frighteningly complex and complicated for any artist wishing to copy another artist's work. In some countries the duration of copyright is 70 years. Back to Top Section 7 - Nature of copyright in artistic worksThis section gives (vests) the copyright owner exclusive rights to do virtually anything he wants to with his own original work.(a) He may reproduce it in any manner or form. You may use it for postcards, Christmas Cards, Birthday Cards, Limited Editions, etc. (b) Publish the work if it was hitherto unpublished. You may have copies published in magazines, etc. Your own works that have already been published may, and will, require you to get the publisher's permission to do so. You may not do so without their permission as another copyright contract exists (subsists) in the published work(s). (e) Making an adaption of your own original work. You may adapt, alter, modify or change your own unpublished original work as you please. You are the copyright holder (owner). Back to Top Section 13 - General exception in respect of reproduction of works"...... reproduction of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright."This section is of paramount importance to the artist in that it does not specifically tell us what to do or what not to do in order not to infringe on someone's copyright. If you copy or reproduce someone's artistic work and it is still "recognizable" and you sign it with your own name, or pseudonym, then you open yourself up to perjury. You are telling others that this particular artistic work is substantially your own "original" work [which it is obviously not]. In overseas magazines they advocate the practice of signing your own name as indicated below: Your name then [after (the other artist's name)] (a) eg. - Dennis L. Clark after Nolan Clark (b) eg. - Dennis L. Clark (Nolan Clark) Whether this is acceptable in a South African Court of Law I do not know. Another point of interest is that Section 13 of the Act does not explain what is "a normal exploitation of the work", or conversely, what is not a normal exploitation of the work! [Maybe somebody in the know could fill us in on this?] Back to Top Section 15 - General exceptions from protection of artistic works".........shall not be infringed"(3) "....If such work is permanently situated in a street, square, or a similar public place." According to this I may, for example, photograph, draw, paint, etc, the Paul Kruger Statue in Pretoria and add my name to the work without infringing copyright. [If in doubt, check with the relevant authorities concerned] Back to Top Section 20 - Moral RightsThis section is only relevant if you have transferred or assigned (See Section 22) copyright or a licence to a third party, and where you feel that your work, or your name, has been (or is being) prejudiced, mutilated, distorted or modified in such a way that your honour or reputation is at stake!Back to Top Section 21 - Ownership of Copyright(2)(a) Subject to the provision of this Section [Sect 21, 1(a)(b)(c)(d)(e) and (2)]If there is not conflict with the clauses in this Section then you are the full copyright owner of the work you have created. Let us examine the clauses in this Section as it is of paramount importance to you and me as artists. All copyright according to Sections 3 and 4 on your original works shall vest (belong) to you, the author of such work. In other words, if the work produced by you agrees with the descriptions as set out in Sections 3 and 4 then you are the legitimate owner of such works. (b) This sub-section applies to employees under contract to the proprietor of a newspaper, magazine, etc. If in the course of his employment he produced an artistic work for the company, the artist shall, by virtue of Sections 3 and 4, be the legitimate copyright owner of the work, except that the employer shall have the copyright over the publication or reproduction of that work for publication in any newspaper, magazine, etc. (c) This sub-section is of particular interest to portrait artists/photographers. If you are commissioned by someone to paint, draw or photograph a particular person or him/herself and that person pays you (ie., you agree to accept payment or some article of equivalent value from them for the work) and the finished work (portrait) was part of the commission, then the copyright does NOT belong to you - it belongs to the person who commissioned the work, if the work does not infringe Sections 3 and 4. Inversely, if you paint a portrait that is NOT a commissioned work and you DID NOT receive payment for it then the copyright of that work belongs to you. (d) If you are employed by someone other than described in sub-section (b), ie., not in the printing and publishing trade, then anything you produce for you employer in the course of your employment belongs to the employer who becomes the copyright owner. In other words, you can claim no copyright ownership in or over that work. (e) I take it that the above sub-sections (a)(b)(c)(d) are in effect if you and your employer have not come to some mutual agreement and have not signed a contract contrary to the above 3 sub-sections. In any case, the moral rights of the author is still in effect notwithstanding the contract entered into. Back to Top Section 22 - Assignment and licences in respect of copyright[In the legal document make sure you fully describe, together with a photograph(s), which artistic work(s) you will be assigning or licencing to a third party](1) Unless otherwise stated in sub-sections (2) thru to (8) any copyright may be included as movable property in a testament [I would assume this to be subject to Section 3 with respect to duration], and it may be licenced out fully or partially to a third party. (2) In a licence to a third party, or as stated in a testament, you may limit some of the acts of a copyright, ie., you may limit a certain part of the copyright exclusively to a particular person. In other words you may keep the copyright of a particular work but giver exclusive rights (licence) to a publisher to publish only greeting cards of that work and you may licence that same work for a specific term of say 6 months only, and you may also limit the number of cards printed to, say, 2000 in number only. Also in the licence you may limit the publishing thereof to only in South Africa and/or not to be published outside the borders of the Republic. You may also limit the publishing thereof to a particular geographical area. It all boils down to the fact that as the owner of the copyright you have control over that work's copyright and you may assign or licence that copyright as you see fit. Warning - Be very careful how you assign or licence the copyright to a third party. Get an attorney you trust to draw it up for you unless you want to see your copyright disappearing into someone else's pocket!!! As with any legal document, read the small print. Get any Latin terms carefully and thoroughly explained to you! If in doubt - DON'T SIGN. (3) Unless any assigning, or giving over, of a copyright or of an exclusive licence is put down in WRITING it is of no use and shall have no effect whatsoever. No person can claim you have given him/her your copyright or exclusive licence of a work if they do not have a written agreement from you. An oral agreement is non-binding. An oral agreement will be thrown out of court. It HAS to be in writing and/or in contract form and be signed by you personally or any person authorized by you to specifically act on your behalf as far as the copyright is concerned. (4) If the licence you grant someone for the use of your copyright work is NOT an exclusive licence then it may be given in a written contract, or given verbally, or orally. It also states that the use by someone else of your copyright may be inferred by conduct. For example: two of you are working on a project that is not a commissioned project and there is no exclusive licence on any of the work. The other artist uses one of your works for , say, publishing of postcards, then this use of your copyright is called inferred conduct. According to this sub-section any revoking or cancelling of all or part thereof by the copyright holder, or his successor in title, is only possible if a licence or contract has been drawn up and also that in this contract/licence it specifically states therein by way of a clause, that it is possible to amend the contract/licence by way of an addendum to the contract/licence or by way of a completely new contract. For you own safety NEVER assign or give a licence to anyone orally or verbally. Also never let your conduct be such that someone else may infer, or take it to be, you granting him/her your copyright, or portion thereof, of that or other artistic work. If someone else is helping, or working with you, in your studio then it would be wise to put up a notice on a wall which states, for example: "ALL WORK PRODUCED BY DENNIS L. CLARK IS COPYRIGHT UNLESS OTHERWISE STATED IN WRITING. 20/10/2001" (5) Works that have not been made [future work(s)] may be transmissible, or transferable, to someone as movable property. Copyright in such works may be assigned (given to), or licenced to, or granted to, or willed to someone by way of a testament; the copyright of which shall be subject to Section 2 and 21 of the Act. Please send us your comments/questions on the copyright act and any other issues to do with the copyright act by clicking HERE 
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