This advice will assess the prospects of success for Mosa’s proposed copyright infringement claims against Neo and TZ Studios (Pty) Ltd. Mosa wishes to claim remuneration for the use of her life story in a book written by Neo and a subsequent film adaptation by TZ Studios. The core legal question is whether Mosa’s orally narrated life story constitutes a work eligible for copyright protection under South African law, thereby giving her rights in the subsequent book and movie. This advice concludes that Mosa’s claims for copyright infringement have negligible prospects of success.
Requirements for Copyright Subsistence in South Africa
For any claim of copyright infringement to succeed, the claimant must first establish that a valid copyright subsists in the work they claim has been infringed. The requirements for copyright protection in South Africa are governed by the Copyright Act 98 of 1978 (“the Act”). According to the Act, a work is eligible for copyright if it is original, has been reduced to a material form, and is of a type recognised by the legislation (Act 98 of 1978, s 2(1)). The author must also be a “qualified person” as defined in the Act, which is not in dispute here (Act 98 of 1978, s 3).
The first requirement is originality. Originality in copyright law does not refer to the novelty or inventiveness of the idea, but rather that the work “emanated from the author himself and was not copied” (*Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd* 2006 (4) SA 458 (SCA) at [39]). The work must be the product of the author’s own skill, labour, and judgement.
The second, and most critical requirement for this case, is that the work must exist in a material form. Section 2(2) of the Act explicitly states that a literary, musical or artistic work “shall not be eligible for copyright unless the work has been written down, recorded or otherwise reduced to material form”. A live speech, a conversation, or an unrecorded story is therefore not protected by copyright until it is fixed in some tangible medium.
Finally, copyright law protects the *expression* of ideas, not the ideas, facts, or information themselves. This is known as the idea/expression dichotomy. A person cannot claim a monopoly over historical facts, news events, or the events of their own life. Another person is free to use those facts and ideas, provided they do not copy the specific form of expression in which an earlier author presented them (Dean, 2022). The court in *Galago Publishers (Pty) Ltd v Erasmus* 1989 (1) SA 276 (A) confirmed that while a subsequent author cannot simply copy the form of a previous work, they are entitled to use the information and facts contained within it as a source for their own, new work.
Mosa’s Claim against Neo
Mosa’s claim against Neo is for infringement of copyright in the book which Neo authored. To succeed, Mosa would need to prove that she is the author or owner of a copyright work that Neo has copied. Her argument is that the book is based on her life story, which she narrated to Neo. Mpotse, her cousin, has advised her that she should be considered the author because the story is new and unique to her experience.
This argument is legally flawed. The subject matter of Mosa’s potential claim is the collection of facts and events that make up her life story. As outlined above, facts and ideas are not protected by copyright. Mosa’s experiences as the wife of a Zama Zama miner, however unique and fascinating, are a series of events, not a “literary work” in the sense required by the Act.
Furthermore, Mosa’s narration of her story to Neo at Motseng Mall was purely oral. She did not write it down, record it, or reduce it to any material form. In accordance with section 2(2) of the Act, no copyright could subsist in her unrecorded narration. Therefore, at the point when Neo decided to write her book, there was no existing copyright work owned by Mosa that could be infringed.
Neo took the ideas and factual information from Mosa’s oral account and used her own skill, labour and judgement to write a book. The specific words, the chapter structure, the narrative choices, and the literary style of the book are Neo’s expression. It is this expression that is the “literary work” protected by copyright, and Neo is its author. Mpotse’s advice that the novelty of Mosa’s experience makes her the author is incorrect; this confuses the novelty of an idea with the originality of its expression, a distinction fundamental to copyright law.
Therefore, Mosa has no claim for copyright infringement against Neo in relation to the book. Neo has not reproduced a substantial part of a work in which Mosa owns copyright. She has merely used unprotected facts and ideas, which she was legally entitled to do.
Mosa’s Claim against Neo and TZ Studios
Mosa also wishes to claim against Neo and TZ Studios for infringement in relation to the movie. A movie is protected as a “cinematograph film” under section 2(1) of the Act. The right to make an adaptation of a literary work, including turning it into a film, is one of the exclusive rights of the copyright owner of that literary work (Act 98 of 1978, s 7(d)).
The legal position regarding the movie flows directly from the conclusion on the book. As established, Neo is the author and copyright owner of the book. Consequently, she holds the exclusive right to authorise the creation of adaptations of it. The facts state that TZ Studios approached Neo, who agreed to sign a deal. This constitutes a lawful licence or assignment of the adaptation rights from the correct copyright holder (Neo) to the film studio (TZ Studios).
Mosa has no ownership or copyright interest in the book. As a result, she has no legal standing to control the creation of derivative works, such as the film. Her permission was not required for the film to be made, and her lack of remuneration is a matter of her relationship with Neo, not a matter of copyright law. The copyright in the film itself will be owned by TZ Studios as the entity by whom the arrangements for the making of the film were made (Act 98 of 1978, s 21(1)(c)). Mosa’s claim that she is an owner of the copyright in the movie is therefore unsustainable.
Alternative Legal Considerations
Although the question is focused on copyright, it is worth briefly noting that other areas of law are equally unlikely to assist Mosa. She might consider a claim for breach of confidence, which protects the wrongful disclosure of confidential information. However, this requires that the information was communicated in circumstances importing an obligation of confidence. Mosa narrated her story to Neo during a family outing in a public shopping mall. It would be very difficult to argue that these circumstances created a legally binding obligation of confidentiality. Neo’s defence that Mosa shared the story “freely” and “without any pressure” would be highly relevant to defeating such a claim. Without an express or implied agreement to keep the story secret, a breach of confidence action would likely fail.
Conclusion
In summary, the advice to Mosa must be that her prospects of success in a copyright infringement claim against Neo and TZ Studios are extremely low. The foundational principles of South African copyright law work against her. Copyright protects the material expression of an idea, not the idea or fact itself. Mosa’s oral account of her life story was not reduced to a material form and therefore did not attract copyright protection. Neo lawfully used the unprotected facts from that story to create her own original literary work, the book. As the copyright owner of the book, Neo was entitled to license the film rights to TZ Studios. Mosa is not the author or owner of the copyright in either the book or the movie, and consequently has no legal basis upon which to demand royalties or sue for infringement.
References
* *Galago Publishers (Pty) Ltd and Another v Erasmus* 1989 (1) SA 276 (A).
* *Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd and Others* 2006 (4) SA 458 (SCA).
* Copyright Act 98 of 1978.
* Dean, O. (2022) *Handbook of South African Copyright Law*. Juta & Co Ltd.
