Copyright is not a right, but a commercial privilege. It is used by authors and artists to control the sale of copies of original work which would otherwise fall into the public domain. As such it is a legal fiction invented by law professionals, who often ignore the rights of others, those who may desire to create derivative works, for example literary allusion in which a poem refers to another poem.

The recent claim by the artist Jane Alexander which ended with the conclusion of a lucrative deal with “Die Antwoord” is a case in point. According to Alexander’s lawyer Martin Heller the well known sculpture on permanent exhibition in the SA National Gallary, “was used in the video without Alexander’s consent”.

“A substantial part of the video showed an animated figure identical with the sculpture’s outer left figure”. That’s right, an animated representation of ONE of the Butcher Boys.

Where do we draw the line between a new and derivative work?

Alexander says she “did not intend to limit her work’s interpretation, and [she] does not seek to interfere with other artists’ work.”

However, in this case, she was merely concerned that “Die Antwoord’s use of her work and its context might be publicly perceived as reflecting her own artistic intention.”

So even though, Alexander readily admited she did not want to “limit her work’s interpretation” she obviously did not want the creation of derivative works which may be misconstrued as her own, and it would seem the desire to create a perpetual monopoly in which any reference to the Butcher Boys is now the subject of legal scrutiny, has won the day.

One can easily see how the copyright scheme, proposed by Alexanders lawyers might work, but in order to enforce her claim, which has yet to be tested in court, a regime of enforcement of legal rights by threats of legal action is created. Artists are silenced, the settlement has the effect of dissuading others from referring to the Butcher Boys without permission, for fear of a commercial rights violation.

It is a control regime based upon an outdated perception of private property in our common law, one which is based upon scarcity, in which copies are controlled because of scarcity and where the only people likely to do copying from a commercial perspective are well-heeled operators. It is not a regime which takes into account the way the Internet has developed.

The South African Copyright Act, has yet to accept the presence of rights conferred by other schemes, for example the Creative Commons and GNU GPL license, but is due for a review later this year.

If you are concerned as I am, about the manner in which Copyright violates rights conferred by the Constitution, I suggest you campaign for an amendment, one in which actions such as the claim made by Alexander, would be outlawed.

Tag: Jane Alexander