Hi there!Copyright question incoming. I&...

Asked by LatashaM on 16-08-2022 21:03:51
Question posted in the Intellectual Property Law category relating to Western Cape

Hi there!

Copyright question incoming. I’ve searched extensively online and haven’t found anything South African related to this question.

-> What is the law around creating drawings/artworks of famous or infamous South African people? (Individuals known in the media- from politicians to criminals)

I know in some states in the US, there is a fair dealing provision when it comes to social commentary but I’m uncertain how it works here.

To clarify:

These drawings would be generating an income - as they would be part of a book.These drawings would be made/inspired from stills of video footage and/or still images. So basically an outline of the person and their features inspired by the images or video seen.

My questions:

-Is this allowed? What is the copyright law surrounding using the ‘likeness’ of an individual for a work of art?

-When still images are used as inspiration, would permission from the original photographer still be needed? And is payment usually required too?

And last question, if I cannot find the original photographer; what happens then?

I just want to ensure everything is above board before proceeding.

Your time and assistance is much appreciated!

Message from the Lawyer

Posted by Att. Patrick on 16-08-2022 22:05:34

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

There is nothing wrong in South African law with drawing / painting somebody (e.g. Nelson Mandela) and then selling it for a profit, or including it in a book. As the artist, the copyright in the drawing / painting belongs to you and you are entitled to sell it. 

Q: When still images are used as inspiration, would permission from the original photographer still be needed? --> I would have to say 'yes' here because you would basically be 'copying' the other work. Ultimately it would come down to likeness. So if your work was very much a copy, then you would be stepping over the line. But if your work merely draws inspiration from the shadow over the subject's face, then no. But proceed here with caution. Too similar, and you would need permission.

Q: If I cannot find the original photographer; what happens then? --> Either err on the side of caution and find another photo to copy, or investigate the author and track them down. Or, take a chance and use it but realist that the author might pop up one day to challenge your use.

Att. Patrick

Message from the client

Thank you for the response- it was very helpful!

So just to clarify on your answer: There is no law against/prohibiting creating a piece of art off the likeness/face of a person who is known publicly?

Message from the Lawyer

Posted by Att. Patrick on 17-08-2022 15:33:46

No, there isn't. Nobody can stop you from painting Nelson Mandela, for example, and then selling that painting. 

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