Tuesday 5 August 2014

Caroline B Ncube

Tuesday Tidbits: copyright reform and fashion design wars

(c) sometinytidbits.blogspot.com
This Leo has come across two pieces of copyright law related news that are both  interesting and significant.

First, thanks to Denise Nicholson, for alerting this Leo to the recent announcement by the Department of Trade and Industry that a Copyright Amendment Bill will be introduced in Parliament before the end of this financial year. The news was announced by the Minister in his annual Budget Vote on 22 July (see the full speech here and a brief note by SabinetLaw here). According to the Minister, these reforms will be informed by the  The Copyright Review Commission's recommendations (see full report here). There was no mention of (you guessed it!) the recommendations made in the draft  national IP policy (perhaps because its only a draft?) This Leo awaits the draft Bill with much excitement.

Murad's gown (left) Rajah's gown (r)
Second, the press has reported on allegations of copyright infringement being made against a leading designer Gavin Rajah in relation to his Fan Sunray Gown. It is alleged by Simphiwe Tshabalala that this gown is a copy of Zurhaid Murad's gown (see IOL report here). Rajah disputes this allegation and states that he created his gown independently and without ever having had sight of Murad's gown. He has instructed attorneys to represent him in a potential litigation against Tshabalala. This Leo has seen the letter sent by the attorneys on facebook but will desist from linking to it here.

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 [2002] 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? 

Caroline B Ncube

Caroline B Ncube

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Tony kakooza
10 August 2014 at 21:10 delete

Thank you for your intriguing post. I believe that, as some U.S Courts have held (e.g., Steinberg v. Columbia Pictures Industries Inc. (1987)) the test of whether there is substantial similarity hinges on whether a casual observer would be able to recognize the alleged infringing work as having been copied from the copyrighted work. On a quick glance of the two designs, there are a number of similarities that are obvious to the eye. Another consideration is as to the level of access that the alleged infringer has or had to the works of the original copyright holder. Did Rajah ever have any way of accessing the works of Murad in the past? Either way, this would make quite an interesting case.