How to Copy Sheep without getting Caught

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Adv Anton Alberts who will run a course on Entertainment Law at the University of Johannesburg during May and June, has written an article for the website which conveys important information for anyone involved in the creative industries.

In David Mamet’s new book, Bambi v Godzilla, the renowned director and screenwriter of films like “The Untouchables’ and “Wag the Dog’, quotes this truism from Richard Weisz, “As an American occupation, screenwriting has replaced knitting which it, in some ways, resembles: the rules for both are simple, and both involve sheep’.

Likewise, many people if not everyone in the creative industries think they have an understanding of copyright and how it should protect their creative works. However, that knowledge, received mostly as disputable anecdotal information, can upon application in the real world leave you feeling rather sheepish. This became quite evident during the first lectures of the Certificate course in Entertainment Law held at the University of Johannesburg last year.

So, to make sure no one else ploughs with your oxen (and leaves your sheep alone), it would do good just reiterate a few truths about copyright as established by the Copyright Act 98 of 1978 (the “Act’) and the common law:

• No copyright vests in ideas, but only in the expression of the ideas. Therefore, your story idea about a bull who is challenged to protect the other animals in the barnyard against evil coyotes is not protected per se, but your expression of the idea into bookform or a screenplay (also the written synopsis and treatment) and eventually a feature film, will be protected.

• Copyright comes into existence automatically, that is upon the moment of creation, but only once a work has been reduced into a material form, like a treatment or screenplay. This is the first requirement for copyright to vest.

• Apart from materiality, the further requirements for copyright to vest are as follows:

o The work must be original: to be original a work must be the product of the author’s own labour and effort. Not a great deal of originality is required. That is why broadly similar films do not necessarily infringe upon each other. Whether the one infringes upon the copyright of the other is a matter of degree of approximation to each other. For instance, the animated film based on “Animal Farm’ will not infringe upon the animated film, “The Barnyard’. On the other hand, Gus van Sant’s frame for frame remake of Alfred Hitchcock’s “Psycho’ would have been an infringement in the absence of consent by way of a licence from the copyright holder; and

o The author must be a qualified person: this means that the author must be a citizen, domiciled or living in South Africa; or

o The work must have been published or made in South Africa.

Some lesser known facts can also be revealing:

• Buildings are regarded as artistic works and thus copyright vests therein. The Act prohibits the inclusion of artistic works in films and television broadcasts without consent. Thus, if you are filming a flock of sheep for a feature film and the barn is in the background, will you truly be required to get the farmer’s consent (who we presume to have designed it)? Fortuously, the Act provides two loopholes:

o No infringement shall take place if an artistic work is included in a cinematograph film or a television broadcast or transmission in a diffusion service (i.e. the Internet) if that inclusion is merely by way of background or incidental to the principal matters represented in the film, broadcast or transmission. Thus if the DOP focuses on the sheep and keeps the barn in the background, no licence to include the barn in the film shall be necessary.

o Furthermore, no infringement of an artistic work shall take place by its reproduction or inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service if the work is permanently situated in a street, square or similar public place. Thus, if you film the sheep running across the town square in front of a statue of Paul Kruger, then the inclusion of that statue without consent shall not be an infringement.

So be careful with whose sheep you are farming, or the chickens might just come home to roost in your carefully planned budget or profits. Next month we will look at some more strange features of copyright. And that is no bull.

Advocate Anton Alberts

Course Details:

Certificate in Entertainment Law (University of Johannesburg)

Next Course: Every Wednesday evening 18:30-21:30 from 2 May to 27 June 2007

Academic Contact: Adv Anton Alberts on 083 950 9272 or at anton.alberts@shaw.ca for more details.

Registration Contact: Ms Corrie Hasse on 011 489-2889 or at chasse@uj.ac.za

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