Introduction
Njozela Legal is a legal agency that takes a new approach on how lawyers render legal services to individuals, business owners and members of the entertainment sector. Core to the existence of Njozela Legal is ensuring that lawyers are more approachable to members of the public by providing expert legal services at affordable fixed prices.
The entertainment industry is vast and exciting however, we have come to learn that a lot of corporates and even bureaucrats tend to undermine creatives. Njozela Legal has spent a lot of time identifying weaknesses and challenges creatives face when dealing with their clients.
This article, however, looks at what the law has to say about copyright infringement through the lens of the Hastings Moeng v Somizi Mhlongo; Bar Leader TV & Multichoice case, whether it be literary works, cinematograph film or audio recordings.
The Television industry
In their 2019 Entertainment and Media report, PWC South Africa attributed the rise of increasingly personal and personalised media interaction to technology and evolving customer. Vicki Myburgh, Entertainment and Media leader for PwC Southern Africa estimates that by 2023 the total Entertainment & Media revenue in South Africa is expected to reach R170.5 billion, up from R128.9 billion in 2018.
South Africa continues to be the largest TV market on the African continent. The report goes on to show that Television industry has shown growth and will expand at 3.9% CAGR to R40.5 billion in 2023. TV advertising will grow at 1.8% CAGR but will account for a smaller proportion of the market in 2023. It is important to note that this report was done prior to the effects of COVID-19, however content consumption remains high despite the challenges production companies may have[1].
Summary of Somizi matter
Honoré de Balzac, world renown novelist and playwriter has said that- “behind every great fortune there is a crime”, therefore it comes as no shock when you hear of copyright infringement disputes in the entertainment and media industry.
In the Hastings Moeng v Somizi Mhlongo, Bar Leader TV & Multichoice case, the Plaintiff, Hastings Moeng alleges that Somizi Mhlongo and Legend Manqele stole the concept for Dinner at Somizi’s from him. Somizi Mhlongo in a television interview on Newzroom Afrika admitted to having discussions with Hastings Moeng back in 2013 where they discussed the possibility of doing a television show called ‘Dinner Kwa Somizi’.
Shortly after Somizi Mhlongo’s hit television show ‘Dinner at Somizi’s’ was broadcasted on Dstv, Eusebius McKaiser took to twitter to show his frustration with Somizi and Legends actions. He alleged that he had evidence which proved that Hastings Moeng and Legend Manqele received emails containing a Synopsis of the same/similar TV show that was on our screens. Eusebius accused Somizi of stealing Hastings idea which was pitched to Somizi back in 2013. Despite being aware of Hastings verbal proposal to do a cooking show, Somizi alleges that he did not read the email with Hastings written synopsis.
Questions that need to be answered: -
· Was there a valid oral agreement between Hastings and Somizi?
· Did Somizi and the other two Defendants infringe upon Hastings Copyright when the TV show Dinner at Somizi’s was broadcasted?
· What will Hastings have to prove to succeed with his claim?
Claims for Copyright infringement
When it comes to copyright infringement, the current legislation[2] gives rightsholders 3 remedies when seeking relief, namely interdicting the works, delivery up of infringing works and a claim for damages.
Jones & Buckle[3] defines an interdict as an extraordinary remedy and summary remedy issued where someone needs protection of his or her rights against unlawful interference or the threat of unlawful interference. An order for delivery up is type of a mandatory injunction which can be used to compel the return of documents or other items wrongfully taken or used. Delivery up is a much simpler process in which the litigant seeks the assistance of the court to gain possession/control/ownership of the infringing works.
On the other hand, there are two types of damages that an aggrieved party can claim, either a reasonable royalty or actual damages suffered. The claim for a reasonable royalty is a damage claim equivalent to the royalties which would reasonably have been payable by a licensee. Section 24 (1B) of the Copyright Act contemplates and permits an enquiry into the quantum of damages only, and not into the existence of an act of infringement. Proof of infringement of copyright, in respect of which the plaintiff bears the onus, is a prerequisite to any entitlement to invoke the enquiry provisions of section 24 (1B). Therefore, before a litigant request that the court makes an enquiry into the quantum of damages (to determine a reasonable royalty) the litigant will have to prove that the defendant/s has infringed upon his/her copyright.
Actual damages are a little harder to prove, Carroll J. Donohue co-author of Statutory Damages for Copyright Infringement, 24 Wash. U. L. Q. 401 (1939) has stated that “It is almost unchallenged that provable actual damages frequently fail properly to compensate for the violation of a copyright, because of the intangible nature of the interest so protected and the difficulty involved in presenting to the court an accounting which reflects the real injury inflicted on the aggrieved owner”. The actual damages contemplated in Section 24 generally take the form of compensation for the loss of profit arising from the infringing action which is hard to prove. The litigant in this instance will most likely rely on this form of relief when their works are already making profits and the existence of the infringing works has affected the profits that the litigant has come to expect.
Our view on Hastings Moeng’s claim
From the outset it is important to note that our view is solely based on information in the public domain, Njozela Legal has not contacted any of the parties involved and we are not privy to any private correspondence.
It is trite law that an idea or creative concept does not qualify for any of the better-known forms of intellectual property protection such as patents, copyright, or trademarks. Without a contract between the parties, you can argue that Hastings synopsis falls in the realm of trade secrets and confidential information. Pexmart CC v H. Mocke Construction (Pty) Ltd[4], dealt with the unauthorised use of confidential information and trade secrets. The court there said that the requirements for such a claim are as follows:
the information must be capable of application in trade or industry.
the information must be secret or confidential; and
the information must be of economic (business) value to the plaintiff.
Having considered the above, Hastings can argue that the information he gave to Somizi is of economic value. However, we are of the opinion that Hastings would not be able to persuade the court that the information given is a trade secret. The cooking show proposed by Hastings is a very generic idea and the format of the show most likely already exists on our screens and in the public domain.
Conclusion
Somizi in this instance received unsolicited information in which a generic cooking show idea was pitched. To succeed with his claim Hastings would have to prove that there was an agreement between the two of them, as an idea does not qualify as intellectual property. We have also concluded that the Synopsis does not qualify as a trade secret as it is a very generic concept that we already see on our screens. Whether Somizi read the emails is not the issue in contention, the issue is whether there was an agreement between the two parties. Though oral agreements may be enforceable in our law however, they are extremely hard to prove.
Our view is that Hastings should have put the correct legal measures in place before furnishing Somizi Mhlongo with a Synopsis. Somizi on the other has should also have measures in place to ensure that people do not presume that their idea has been stolen when they encounter a situation like this. If you are in the entertainment industry and you are in a position where you constantly pitch ideas or receive them, it is important that you consult a good lawyer who can protect you from nuisance suits.
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