Galago Publishers (Pty) Ltd and Another v Erasmus

• Jurisdiction: South Africa

Galago Publishers (Pty) Ltd and Another v Erasmus
1989 (1) SA 276 (A)

1989 (1) SA p276

Citation	1989 (1) SA 276 (A)
Court	Appellate Division
Judge	Corbett JA, Smalberger JA, Milne JA, Kumleben JA, Nicholas AJA
Heard	September 6, 1988
Judgment	September 30, 1988

Flynote : Sleutelwoorde

Copyright — Infringement of — To reproduce within the meaning G of Copyright Act 98 of 1978 means to copy — It must be shown that there is sufficient objective similarity between the infringing copy and the original work for infringing copy to be properly described, not necessarily as identical with, but as a reproduction or copy of the original — Must also be shown that the original was a source from H which the infringing work was derived — The question is whether the defendant copied the plaintiff's work or is it an original work of his own.

Copyright — Infringement of — Assigned copyright — Where an author surrenders copyright by assignment he is placed in the same position vis I a vis copyright work as a stranger — Any alleged infringement by him must be adjudged on that basis.

Copyright — Infringement of — Book — Second appellant adapting and ghost-writing a manuscript which was subsequently published by first appellant — Second appellant thereafter producing a second book in the format of a coffee table book copiously illustrated but J basically abridging 12 chapters from the original work — Provincial

1989 (1) SA p277

A Division finding infringement had been established — On appeal, Court finding infringing copy was an abridged version of the original with extensive language copying — Similarities too marked and too many — Dictum that there is no copyright in the ideas, thoughts or facts not always correct as the compilation of facts and presentation could B amount to an infringement — Second appellant availing himself of the skill and industry that went into writing the original work — Court confirming finding that there had been an infringement of copyright.

Headnote : Kopnota

It is not necessary for a plaintiff in copyright infringement C proceedings to prove the reproduction of the whole work: it is sufficient if a substantial part of the work has been reproduced. To 'reproduce' within the meaning of the Copyright Act 98 of 1978 means to copy and in order for there to have been an infringement of the copyright in an original work it must be shown (i) that there is sufficient objective similarity between the alleged infringing work and the original work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or copy of the latter; and (ii) that the original work D was the source from which the alleged infringing work was derived, ie that there is a causal connection between the original work and the alleged infringing work, the question to be asked being: has the defendant copied the plaintiff's work, or is it an independent work of his own.

It seems that, generally speaking, where an author has surrendered his copyright by assignment to another, he is placed in the same E position vis-a-vis the copyright work as a stranger and any alleged infringement by him must be adjudged on that basis.

Respondent was the owner by assignment of the copyright of a book entitled Selous Scouts - Top Secret War. It was conceived by Lt Col Reid Daly and funded by a group of ex-Rhodesians who had been involved in the bush war in Rhodesia in the 1970s. It related selected operations (some 22 out of 65 - 70 external operations and a few internal operations) F of the Selous Scouts. To protect former members of the unit, pseudonyms had been used. First appellant had published the book. Second appellant, the managing director of first appellant, had adapted and ghost-written the original manuscript for its publication. It was issued as a standard volume with a text of about 400 pages. Some 80 000 copies were sold. Second appellant suggested a sequel but relations between the publisher and the syndicate had soured. Second appellant proceeded to produce G and publish a 'coffee-table' edition of the events with the title Selous Scouts - A Pictorial Account. The book consisted of some 170 pages liberally illustrated with photos and other illustrations in a larger format with glossy pages. It consisted of 17 chapters. Respondent had sued appellants in a Provincial Division for the infringement of copyright and the Court had concluded that the infringement had been established and granted an interdict and made ancillary orders for H the delivery to respondent of the copies of the infringing work and costs. With the leave of the Court a quo, appellants appealed against the whole judgment. It was contended by respondent that appellant had copied 12 out of 17 chapters from Top Secret War and the latter work was an abridged edition of the former. It was contended for appellant that some allowance should be made for the fact that second appellant was part-author of Top Secret War and that the similarities in language were to be attributed to housestyle. It was furthermore contended that I Top Secret War narrated historical facts and that there could be no copyright in facts. In an appeal,

Held, that the 12 chapters in Pictorial Account constituted what was in effect an abridged version of what appeared in Top Secret War with extensive language copying.

Held, further, that there was no merit in the submission that allowance should be taken for the fact that second appellant was a part-author: he J was part of Top Secret War only in that he had reworked and added to Reid Daly's manuscript.

1989 (1) SA p278

A Held, further, as to the contention that the language similarities were to be attributed to housestyle, that the similarities were too marked, too many, and in too many instances inexplicable except on the basis of copying.

Held, further, in dealing with the dictum that there was no copyright in ideas, thoughts, or facts, the copying of an author's selection and compilation of facts and the manner he presented them might well amount to an infringement of copyright; it was generally a matter of degree.

B Held, further, that, in writing Pictorial Account, the second appellant had not only used the general idea underlying Top Secret War but had gone further: he reproduced the facts selected by the author of Top Secret War to portray the history of the Selous Scouts, virtually down to the last detail; in each of the chapters of Pictorial Account to which objection was taken, the story followed faithfully in all its essentials that told by Top Secret War.

C Held, further, that Pictorial Account could not have been written without continuous reference to Top Secret War and the differences between the two in regard to content and language were mainly due to the fact that Pictorial Account was written as an abridgement of Top Secret War with, as regards language, a considerable amount of colourable alteration: in producing Pictorial Account the author had availed himself unlawfully of a great deal of the skill and industry that had gone into the writing of Top Secret War.

D Held, accordingly, that the Court a quo had correctly found that Pictorial Account constituted an infringement of copyright in Top Secret War. Appeal dismissed.

The decision in the Transvaal Provincial Division in Erasmus v Galago Publishers (Pty) Ltd and Another confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Harms E J). The facts appear from the judgment of Corbett JA.

R M Wise SC for the appellant's cited the following authorities: Echevarria v Warner Bros Pictures Inc 12 F Supp 632 at 638 (SD Calif 1935); Francis Day & Hunter v Bron [1963] 1 Ch 587 at 623; Gomme Ltd v F Relaxateze Upholstery Ltd [1976] RPC 377 at 390; Hanfstaengl v H R Baines and Co Ltd [1895] AC 20 at 27; Hanfstaengl v W H Smith and Sons [1905] 1 Ch 519 at 526; Harman Pictures NV v Osborne and Others [1967] 2 All ER 324; Kenrick and Co v Lawrence and Co [1890] 25 QBD 99; King Features Syndicate Inc and Another v O & M Kleeman Ltd 1941 AC 417 G (HL) ([1941] 2 All ER 403); Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273; McCrum v Eisenar [1917] 87 LJ Ch 99; Ravenscroft v Herbert and New English Library Ltd 1980 RPC 193 (Ch); Topka v Ehrenberg Engineering (Pty) Ltd 30/5/1983 AD (unreported); Warwick Film Productions v Eisinger [1969] Ch 508; West v Francis 5 B & Ald 738 [1822] at 743.

C E Puckrin SC (with him M M Jansen ) for the respondent cited H the following authorities: Copinger and Skone James Copyright 12th ed para 469 at 184; Laddie, Prescott and Vitoria Modern Law of Copyright para 2.78; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465; Nimmer Copyright 2nd ed at 365; Hanfstaengl v H R Baines & Co Ltd [1895] AC 20; Kelly v Morris 1866 LR 1 Eq 697; Fernald v Jay I Lewis Productions Ltd (1955) FSR 499; Echevarria v Warner Bros Pictures Inc 12 F Supp 632 at 638 (SD Calif, 1935); Ravenscroft v Herbert and New English Library Ltd 1980 RPC 193; Warwick Film Productions v Eisinger [1967] 3 All ER 367 at 385C - D; University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 610.

J Cur adv vult.

1989 (1) SA p279

A Postea (September 30).

Judgment

Corbett JA:

This appeal concerns the alleged infringement of the copyright in a literary work, namely a book entitled Selous Scouts Top Secret War (to be referred to as Top Secret War ), which was B first published in South Africa in about July 1982. The work said to infringe the copyright in Top Secret War is a book entitled Selous Scouts - A Pictorial Account (to be referred to as Pictorial Account ), published in South Africa in about September 1984. Pictorial Account was written by second appellant, Mr Peter Stiff, and...