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Tuesday, June 24, 2014


(The following article is made available in arrangement with the Arts & Culture Trust (ACT) and the Dramatic, Artistic and Literary Rights Organisation (DALRO). See ACT’s website

André Myburgh is a South African attorney and solicitor of England and Wales and a Fellow of the Institute of South African Intellectual Property Lawyers. He is a consultant with attorneys Lenz Caemmerer of Basel, Switzerland, where he specialises in local and international copyright cases. Lenz Caemmerer are legal advisers to DALRO on international copyright matters.)

Copyright – What It Means For Visual Artists by André Myburgh

Copyright is pictured, with some justification, as a complex area of law best left to experts. Yet, copyright in an artistic work is potentially a valuable source of income for the artist who created it, and it is therefore important for artists who make a living from their works to have a basic understanding of copyright. Financial benefits from the copyright in a work can endure long after the original work has been sold, since the copyright in an artistic work normally does not pass to the buyer with its sale. This article aims to set out how visual artists can use copyright to be remunerated from licensed use of their works, over and above the income generated by sales.

The term “artistic works” in the South African Copyright Act, No 98 of 1979, includes “paintings, sculptures, drawings, engravings” and other works of craftsmanship. It also includes “works of architecture” and photographs, which are not dealt with specifically in this article, since they enter the commercial markets differently from the other fine arts, and slightly different rules apply to them. Each one of them justifies its own article.

The artistic quality or merit of an artistic work is not a factor in determining whether the work is eligible for copyright protection. To be eligible for copyright, the artistic work only needs to be original. As a result, many works which would not be deemed fine art also qualify as “artistic works” under the Act, the most notable example being technical drawings. Artistic works which are not fine art are also not considered in this article, since it is limited to a discussion of copyright in works of conventional fine art, such as paintings and sculpture, made by independent artists.

The Copyright Act gives copyright protection to original artistic works if the artist (called “the author” in the Act) was a South African citizen or domiciled in the country when the work was made.

In addition, irrespective of the nationality or domicile of the artist, copyright protection is also given to original artistic works which were first published in South Africa, in other words, if the work was first “issued” (to use the words of the Act) to the public in this country. However, the Act does not regard the exhibition of a work of art as “publication”. The first “issue” would therefore usually be the first sale of the work or the first time the work was publicly offered for sale.

As a result of South Africa’s being a member of two international treaties, the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, copyright protection is granted to original artistic works of which the artists are citizens of the other countries which are signatories to those treaties, or who were domiciled in those countries when they made those works.

The topics below are extensively discussed in the full article available on

  • Duration of copyright in artistic work
  • Ownership of copyright
  • Nature of copyright – What rights are given to the copyright owner?
  • Exceptions to the rights of copyright
  • International protection of copyright works
  • Rights legislated for the benefit of artists outside South Africa
  • The prospect of legislative developments in South Africa for copyright in the visual arts
  • Collective management of copyright  – a practical and viable solution for artists

Additionally, DALRO’s Standard Visual Arts Mandates – one for living Artists and another for Heirs and Successors-in-Title – can be found at  Email enquiries to or call 011 712-8330. - André Myburgh