Pretoria - South Africa’s largest copyright infringement case to date, in which photographer Shaun Harris is claiming R20 million for the use of his picture of Nelson Mandela, has been set down for hearing in October in the Gauteng High Court, Pretoria.
His former agent, Picturenet Africa Ltd, has since joined the action as the second plaintiff and is claiming R2.2bn.
The action was initially instituted by Harris against the Ministry of Communications, as well as the Government Communications and Information System (GCIS).
Harris’ s lawyer, Andrew Boerner, said the actual amount claimed still had to be finally assessed after consultation with experts. But the amounts above are at this stage reflected in the papers before the court.
Harris said in his papers that on January 8, 1999, at Mahlamba Ndlopfu, the official presidential residence in Pretoria, he took a posed picture of the then president Mandela. He said the picture constituted his original artwork as contemplated in the Copyright Act, and he was the owner of the picture.
He and Picturenet Africa then entered into a written exclusive licence agreement in terms. The digital photographic agency was granted an exclusive licence to sell copies of the picture to third parties via the internet.
In December 2006, GCIS purchased a licence to use the image of Mandela in a book. Harris said this was how GCIS came to be in possession of the original artwork. It is claimed that the picture wasn’t removed from the GCIS system. It was said that upon the death of Mandela on December 5, 2013, GCIS used the image again or forwarded it to third parties without having the authorisation to do so.
According to the court papers, despite the limited non-exclusive licence agreement, government had unlawfully used this picture, reproduced it and distributed it to all agencies and branches of government.
Harris stated that government also sent it to various embassies and consulates around the world, stating that “I attach a photo you can use”.
He said GCIS also placed advertisements in the media containing the original artwork. According to court papers, GCIS in fact made 2.2 million unauthorised reproductions of the original picture. This left Harris and the agency out of pocket, allegedly.
Government, in defending the action, offered a blanket denial of all the allegations.
Boerner, meanwhile, said the fact remained that his client’s image was used.
“The lawfulness thereof, the persons responsible and the amount of times the image was unlawfully used, will be determined by the court,” he said.