|Murad's gown (left) Rajah's gown (r)|
This Leo will not engage in a full copyright analysis here but merely wants to make the comment that this incident turns on first principles of copyright law. Creating a work that is similar to another person's work does not automatically lead to a finding of infringement. An independently created work is original ( thus eligible for copyright protection) if it is the author’s own creation and not copied from another source (see Appleton & another v Harnischfeger Corporation & another 1995 (2) SA 247 (A) (on SAFLII here) at 262). As to infringement by copying, it was held in Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd  4 All SA 67 (SCA) by Harms JA that- "In order to establish copying, a two-stage inquiry is conducted. It has to be established whether there is the necessary degree of objective similarity between the original work and the alleged infringement; then it must be established that the similarity is causally connected to the original work. The causal connection can either be direct or indirect". At (an admittedly superficial) glance, there seems to be some similarity between the gowns. Whether it is substantial, is a more meaty matter, for another time. Whether causal connection between the works could be proven is another critical matter.Only the copyright holder in the Murad design can bring an infringement claim against Rajah (s 24 Copyright Act). As far as this Leo can ascertain Muraj has not made any public statements about this matter and it is not currently known if a copyright infringement suit is on the cards. Having placed the this tidbit before Afro-IP readers, this Leo is happy to return to her favourite sofa and hope for analysis of the prospects of an infringement claim (should it ever be brought) from one (or more) of them or her fellow-bloggers.
|fancy a bite ... anyone?|