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Author Topic: Copyright Act - PART 5 (Comments on the Copyright Act) Part 1  (Read 1644 times)


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Comments on the Copyright Act
Section 1 - Definitions
Section 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 - Definitions
Some definitions are self-explanatory and will not be commented on

adaption - 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.

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Section 2 - Works eligible for copyright
According 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.

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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.
« Last Edit: September 27, 2010, 07:37:46 AM by dennis »
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