Respondent on this score. In the premises, the Respondent was interdicted from infringing the First Applicant's
copyright in the label in question.
Notes
For Intellectual Property Law see LAWSA Reissue (Vol 20(1), paras 55 91)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)
Econostat (Pty) Ltd v Lambrecht and another 89 JOC (W)
Fax Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D)
Frank & Hirsch (Pty) Ltd v A Roopanand Brothers (Pty) Ltd 1993 (4) SA 279 (A)
Gibbins v Williams, Muller, Wright & Mostert Ingelyf en andere 1987 (2) SA 82 (T)
Marais v Bezuidenhout 1999 (3) SA 988 (W)
Rodrigues and others v Alves and others 1978 (4) SA 834 (A)
Smit v Workmen's Compensation Commissioner 1979 (1) SA 51 (A)
Strydom v Duvenhage NO en 'n ander [1998] 4 All SA 492 (A)
Waylite Diaries CC v First National Bank Ltd 1993 (2) SA 128 (W)
Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A)
Page 369 of [2000] 3 All SA 367 (C?)
Judgment
COMRIE J
The applicants seek interdictory and ancillary relief in respect of: (a) alleged infringements of copyright relating to
labels on plastic wine bottles; and (b) alleged passingoff in relation to the same labels. The relief is sought in the
alternative.
It is not disputed that the first applicant developed Annexure A which was the precursor to the label now in use,
Annexure F. It is also not disputed that the first applicant developed the present label (see Annexures E and F) for
the purposes of the marketing contract which he and his son and partner, the second applicant, concluded with the
respondent. That contract is Annexure B and I shall come to it later. It is further not disputed that the respondent
continues to use the label in its Annexure F form although the aforegoing contract has come to an end.
Apart from the change in the socalled A number (from A214 to A84), which is required by legislation to be
incorporated, all that the first applicant did when producing Annexure F was to omit the word "Sondela" from
Annexure A. Otherwise the labels are identical: the same layout, the same bold colours, and the same style and
size of print for the words "Late Harvest". Naturally, the first applicant claims no copyright in those words as such,
but only when they appear in the getup (if I may so call it) of Annexures A and F. The case for the first applicant is
that Annexure A constituted an original artistic work in terms of the Copyright Act 98 of 1978, the copyright in which
vested in him as its author; and that Annexure F constituted an adaptation thereof, the use of which by the
respondent after the end of the contract was and remains unauthorised.
It is clear that labels, such as those now in contention, can amount to "drawings" and thus can amount to
"artistic works"; see the definitions in section 1 of Act 98 of 1978. See too Frank & Hirsch (Pty) Ltd v A Roopanand
Brothers (Pty) Ltd 1993 (4) SA 279 (A) at 288BD, and the cases there cited. That proposition was not contested by
Mr Vos, who appeared for the respondent. He submitted, however, that whatever one might think of Annexure A,
there was no originality in its successor, Annexure F, after the word "Sondela" had been removed. He analysed
Annexure F, as though it was an original work, in order to demonstrate his submission. That seems to me, however,
not to be the correct approach on the facts of the present case. The correct approach in my view is first to enquire
whether Annexure A has sufficient originality (not meaning artistic quality) to constitute an artistic work deserving of
copyright protection (as to which I was referred to Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A);
Waylite Diaries CC v First National Bank Ltd 1993 (2) SA 128 (W); and if so, to enquire secondly whether Annexure F
constitutes an adaptation of Annexure A. Approaching the matter along these lines, I should mention that there is
no evidence, in particular from the respondent, that anyone had designed or used the same or a similar label prior
to the development of Annexure A. In my opinion that label required some special skill and labour to create and the
result was most distinctive. I do not see why a particular configuration of colours (eg the national flag) should be
incapable in principle of such originality as will sustain copyright. I hold therefore that Annexure A was and is an
original artistic work, the copyright in which vested and still vests in the first applicant. The respondent has made it
clear, without conceding the aforegoing, that it asserts no rights to Annexure A.
Page 370 of [2000] 3 All SA 367 (C?)
An "adaptation" (section 1) in relation to an artistic work "includes a transformation of the work in such a manner
that the original or substantial features thereof remain recognisable". I have already described the differences