Sanchia Temkin
2 July 2009
Johannesburg — CO-AUTHORS of copyrighted works cannot claim damages individually for infringement. They must sue together in a court as co-authors or prove what their individual damages are, legal analysts said this week.
This comes in the light of a judgment this month in the Supreme Court of Appeal in which David Feldman, executor of pop diva Brenda Fassie's estate, brought a claim against EMI Music. Feldman claimed to have joint ownership in the copyright of 157 works, all but four of which Fassie had composed in collaboration with others.
Nishi Chetty, a partner at intellectual property law firm Adams and Adams, said the appeal court judgment has "do-or-die implications for co-authors of copyright works seeking to sue individually for the full amount of damages flowing from copyright infringement.
"The court highlighted that in the case of co-authorship of a work, ownership in that work vests in the
co-authors and that one co-author does not have the right, without the other's consent, to exploit the entitlements flowing from his copyright," Chetty said.
The court also pointed out that an individual co-author was restricted to the portion of the "reasonable" royalty to which he or she would have been entitled had the work been licensed properly.
In the case in question, Feldman alleged that EMI Music had since the 1980s performed acts in respect of all 157 works which fell within the exclusive entitlement of the copyright owner -- the author -- and was guilty of copyright infringement.
He claimed damages equal to the royalties, which would reasonably have been payable by a licensee, including punitive damages. EMI argued that Feldman had failed to indicate that the co-authors had assigned their copyright to Fassie and that he did not have legal standing to bring the matter on his own to court.
The high court agreed with the music company and Feldman took the matter on appeal.
Chetty said Feldman's appeal had to fail because his claim lacked essential information regarding the proportions in which the co-authors were entitled to share the fruits of the copyright. At most he might have succeeded in a claim for only the reasonable royalty he would have received had the works been subject to a proper licence agreement.
"If a co-author intends suing individually, the other co-authors of the works would have to assign their copyright to the prospective litigant."
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