Performing Right Society Ltd v Berman and Another 1966 (2) SA 355 (R)
Priority Records (Pty) Ltd v BanNab Radio and TV; Gramophone Record (Pty) Ltd v BanNab Radio and TV
1988 (2) SA 281 (D)
S v Bruhns 1983 (4) SA 580 (NC); 1984 (1) SA 481 (NC)
S v Khanyapa 1979 (1) SA 824 (A)
South African Music Rights Organisation Ltd v Trust Butchers (Pty) Ltd 1978 (1) SA 1052 (E)
Judgment
KROON J
Each of the nine plaintiffs is a legal persona, either a corporation or a limited partnership, duly incorporated under
the laws of the State of Delaware, United States of America and each conducts business as a producer and
distributor of cinematograph films.
The first defendant is a businessman and the sole member and manager of the second defendant. The second
defendant is a close corporation which conducts business in Port Elizabeth, under the style of Film World, as a
distributor by way of sale or hire, to members of the public, of video tape copies of cinematograph films.
The nine plaintiffs each instituted a separate action against the defendants for certain relief, the cause of action
relied upon in each case being an alleged
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infringement of copyright and, where applicable, an alleged unauthorised use of a trade mark. The allegations
related to an alleged illegal use by the defendants of certain cinematograph films. After the close of pleadings an
order consolidating the nine actions was granted by this Court.
When the hearing commenced I was advised by Mr Cullabine, who appeared for the plaintiffs, that the sixth
plaintiff, Buena Vista Pictures Distribution Incorporated, was not proceeding with its claims against the defendants.
A collective reference hereinafter to the plaintiffs will accordingly be a reference to the remaining eight plaintiffs. I
was further advised that the latter plaintiffs were not proceeding with their claims insofar as same related to a
large number of the cinematograph films/trailers referred to in the pleadings and were restricting their claims to
allegations in respect of certain specified films/trailers details of which will appear below.
The following is common cause or not in dispute:
1. At all material times
(a)
valid copyright subsisted in the Republic of South Africa in terms of the provisions of the Copyright Act, No. 98 of
1978 in the cinematograph films the titles of which appear under the headings of "Films" and "Trailers" in the schedule
set out below;
(b)
the plaintiffs were respectively the copyright owners or exclusive licensees, within the meaning of the Copyright Act,
of those films the titles of which appear below the name of each plaintiff in the schedule;
(c)
the films were duly��registered in terms of the provisions of the Registration of Copyright in Cinematograph Films Act,
No. 62 of 1977 in the name of the plaintiff in question either as copyright owner or exclusive licensee;
(d)
each of the plaintiffs was accordingly vested with the exclusive right in respect of the applicable films and trailers to
do or to authorise in the Republic of South Africa the acts envisaged in section 8 of the Copyright Act;
(e)
the trailers reflected in the schedule were substantial parts of the films in question;
(f )
the defendants were aware that copyright subsisted in the said films.
SCHEDULE
(i) First Plaintiff:
FILMS: Nil. TRAILERS: The Cutting Edge; Harley Davidson and The Marlboro Man.
(ii) Second Plaintiff:
FILMS: Edward Scissorhands; Die Hard; Working Girl. TRAILERS: Die Hard; Bad Medicine; Enemy Mine; The Jewel of
the Nile; Project X; Bachelor Party; Licence to Drive; Worth Winning; The Fly II.
(iii) Third Plaintiff:
FILMS: Problem Child; Play Misty for Me; A Kiss before Dying. TRAILERS: The Hard Way; Kindergarten Cop.
(iv) Fourth Plaintiff:
FILMS: Awakenings; Who Finds a Friend Finds a Treasure; Karate Kid III; Fourth Protocol; Thieves and Robbers;
Odds and Evens; Return to the Blue
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