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Author Topic: Copyright Act - PART 6 (Comments on the Copyright Act) Part 2  (Read 1109 times)


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Section 7 - Nature of copyright in artistic works
This 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(b) Publish the work if it was hitherto unpublished.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You may adapt, alter, modify or change your own unpublished original work as you please.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).

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?]

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]

Section 20 - Moral Rights
This 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!

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.

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:


(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.
« Last Edit: September 27, 2010, 07:50:43 AM by dennis »
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