A drama recently played itself out at the Labia Theatre in Cape Town. No surprise there you say, that's the kind of thing that happens at theatres. But this was a bit different. That’s because lawyers representing someone who claimed to be the owner of the rights to a film that was about to be screened – a documentary called In the Land of Ou Makai: a Bushman Odyssey – persuaded the owner of the venue that the screening would be unlawful, and that she would be well advised not to go ahead with it. Great disappointment for the assembled throng!
Cases involving rights to films don’t come up often in South Africa. Films are protected by copyright law, an area of the law that in South Africa doesn’t require registration. It is, in fact, possible to register the copyright in a film in South Africa, but it certainly isn’t necessary because the registration doesn’t create the copyright; it simply makes it easier to prove the copyright.
The owner of the copyright in a “cinematograph film” (to give it its full name) has various rights. One of these is the exclusive right to reproduce or make copies of the film. Another is the exclusive right to show the film in public. Hence the claim that the screening of the documentary at the Labia would infringe copyright. The owner of the copyright can bring a court action for an interdict (injunction), damages and legal costs in cases where the copyright is infringed – which probably explains why the owner of the theatre decided to follow the lawyers’ advice.
But who owns copyright? In the case of a film, the “author” of the film is the first owner – the reason why we speak of a first owner is, of course, because ownership can be passed on, for example by contract (called an assignment), or in a will. The author of a film is said to be the person responsible for “the arrangements for the making of the film”.
So the author of the film – the person who made the arrangements for making it – is the first owner of the copyright. But there are some exceptions to this. These are contained in section 21 of the Copyright Act, 1978. One of these says that if there are joint authors, then there’s joint ownership of the copyright. Another says that if one person commissions another person to make a film and pays the filmmaker for his or her work, then the person who commissions the film is the owner of the copyright, rather than the filmmaker. A further exception says that if a person makes a film in the course and scope of their employment by another person, then the employer owns the copyright.
So what happened in the case of the documentary? It’s not entirely clear from the press reports, but it appears that the person who persuaded the theatre to cancel the showing, a certain Patricia Glyn, certainly had an involvement with the documentary. Just what the nature of this involvement was, however, seems to be in dispute. It’s clear that she wasn’t a joint author of the film. What she claims is that she employed the filmmaker, a certain Richard Wicksteed, to make the documentary, thus making her the copyright owner by virtue of the employment exception.
Not so, says Wicksteed, who says he was contracted by Glyn as an independent filmmaker. This might, of course, still make Glyn the copyright owner on the basis of the commissioned work exception, but Wicksteed claims that he wasn’t paid what he was due, and that he had to put R40 000 of his own money into the project. Which, if true, may well kill off the commissioned work exception. The press reports suggest that Wicksteed's case goes beyond this, and that he feels that the written contract between the parties actually allows him to use footage in his own documentary.
All in all, a messy affair. One that might, of course, end up in a court of law. And one that is all too common in matters involving copyright. Why this is the case isn’t really clear. One reason may be that people often aren’t even aware that copyright is involved. Copyright isn't confined to films, of course; it covers all sorts of works, including written works (including advertising copy), artistic works (including logos), photos, music, sound recordings and computer software. Another reason may be that few lawyers know much about copyright, so they don’t always appreciate the issues involved.