E.TV lose in copyright case
APPLICATION TO THE CAPE TOWN SMALL CLAIMS COURT
I, Steve Kretzmann, 33-year-old male, residing at 209 Victoria Court, 301 Long Street, Cape Town, charge E.TV News with the unauthorised use of my photographs in their news broadcasts of Monday April 24 and Thursday April 27.
On the E.TV News 7pm broadcast of Monday April 27, the defendant aired one of a series of three photographs appearing on the front page of the Sunday Weekend Argus of April 23, 2006. The photographs were supplied to the Sunday Weekend Argus by myself. Sale of said photographs was for once-off use only, with copyright being held by Steve Kretzmann. E.TV News used the photograph full frame and beyond the context of the publication it originally appeared in. No credit was given.
I subsequently contacted Andrew Barnes, news editor at E.TV News in Cape Town on either the Tuesday or Wednesday following their broadcast, informing him of their breach of copyright.
Barnes apologised and advised me to send him an invoice.
On Thursday April 27 at approximately 19.30 it was brought to my attention that E.TV News had again broadcast the series of photographs during their 19:00 news broadcast as they appeared in the Sunday Argus, and had zoomed into two of the photographs, beyond the context of the publication they appeared in.
On Thursday April 27 the photographs were again aired during the E.TV 22:00 news broadcast. On this occasion, all three of the photographs were shown beyond the context of the publication they appeared in.
I, the plaintiff, submit that the copyright on these photographs belonged to me. The defendant, despite the photographs being credited in the publication they appeared in and one of their staff members having being told by the news editor at the Cape Argus that the photographs did not belong to them, and acknowledgement having been made by the defendant that they were aware of this fact, made use of the photographs beyond what the defendant claims is "fair use principle".
The plaintiff subsequently tendered for the monies due for the use of the photographs at a rate of R1 500 per photograph per broadcast and requested that E.TV News footage of the photographs be removed from the E.TV News archives in order that further copyright infringement does not occur.
The total amount comes to R9000 but I abandon R2000 of this amount to bring it into the jurisdiction of this court.
The request for payment within 14 days was sent to E.TV News Cape Town by e-mail on Friday April 28, 2006.
I am advised by senior colleagues in the media industry that the use of my photographs by E.TV News goes beyond the principle of "fair use" which would entail showing the viewer the entire published page, with all images as they appeared on the page in the context of which it was used without taking elements of the page out of their specific context.
E.TV’S RESPONSE AND ARGUMENT IN RELATION TO MR KRETZMANN’S CLAIM
1. The plaintiff seeks an order for payment of the amount of R7 000 in respect of enrichment against the defendant.
2. This enrichment allegedly derives from the defendant’s broadcast of at least three photographs depicting the Mayor of Cape Town, Helen Zille being attacked in Crossroads on 22 April 2006 (“the photographs”).
3. As a matter of fact, the defendant did not broadcast the photographs directly, but broadcast the front page of the 23 April 2006 edition of the Sunday Argus newspaper in which they appeared. This broadcast was with the consent of the Sunday Argus and took place in the course of the defendant’s business, during which it showed the front page of newspapers from time to time. This is a common practice by broadcasters, including international broadcasters.
4. The plaintiff further alleges that copyright in the photographs vests in him and, as a result, any use of the photographs has to be negotiated with him and unauthorised use of the photographs is not permissible.
5. The defendant is not certain of the basis upon which the plaintiff contends that the broadcast of the photographs was impermissible by the defendant given that the plaintiff assigned (or must have assigned) his rights in and to the photographs to the Sunday Argus in order to enable them to publish the photographs.
The broadcast of the photographs amounts to fair dealing.
6. As part of its news reports covering the attack on Mayor Helen Zille on 22 April 2006, the defendant broadcast the front page of the Sunday Argus edition of 23 April 2006 in its news bulletins on 24 April 2006 (at 19h00) and on 27 April 2006 (at 19h00 and 22h00).
7. The defendant has an arrangement with the Sunday Argus permitting it to broadcast pictures of the Sunday Argus.
8. In terms of the Copyright Act (Act 98 of 1978):
8.1 Copyright shall not be infringed by any fair dealing with a photograph for the purpose of reporting current events by means of broadcast.
8.2 In order to use photographs in such instances, all that the broadcaster is required to do is to ensure that the source of the material broadcast is clearly mentioned.
9. In this instance, the defendant’s use of the photographs falls within the category of fair dealing referred to above as:
9.1 The photographs relate to a current event, being the attack on the Mayor of Cape Town at a meeting in Crossroads.
9.2 The defendant broadcast the front page of the Sunday Argus, as part of its news reports on this current event.
9.3 The source of the material broadcast was clearly mentioned, as the words “Sunday Argus” were clearly visible in the broadcasts.
10. In the circumstances, although the defendant’s use of the photographs may not have been authorised by the plaintiff, this use of the photographs was permitted by our law and there was no obligation on the defendant to obtain the plaintiff’s permission in order to broadcast the front page of the Sunday Argus, including the photographs.
11. The defendant denies that it has been enriched as a result of its broadcast of the photographs.
STEVEN KRETZMANN: ARGUMENT REFUTING E.TV'S DEFENCE IN RELATION TO MR KRETZMANN'S CLAIM
Dear Mr Joubert.
In counter-argument to E.TV's response I would like to state the following:
In reference to point 2 of E.TV's defence:
The word 'allegedly', as I believed was determined in court, can be struck from the document.
In reference to point 5 of E.TV's defence:
No copyright was assigned to the Argus. What the Argus has is my permission to publish the photograph(s) for once-off use only - for an agreed-upon sum.
In this case the sum agreed upon was R400 per photograph (a relatively low amount for a front page news photograph of this nature but given because three photographs were published and because I have a good working relationship with the publication. Had they only published one photograph I would likely have charged in the region of R900 for the photograph which I doubt would have been heavily disputed by the editor).
In reference to points 8 of E.TV's defence:
The section of the Copyright Act 98 of 1978 to which E.TV refers states that "the source shall be mentioned, as well as the name of the author if it appears on the work".
I would be surprised if the court upholds E.TV's contention that the source does not appear on the work as it is listed under the work.
Should the court consider being swayed by this argument I would urge the court to bear in mind that the copyright law was promulgated in 1978, before the advent of digital photography and when television broadcasting was still in it's very early years in this country.
I would presume the law here applies to a case in which a broadcaster may display an artwork on which, traditionally, the artist's name would be signed on the bottom corner of the work.
Thus were a broadcaster to source an artwork in question, but they do not know who the author of the work is because it is not signed or labelled, they only have to mention the source and leave out the author's name.