Pistorius trial image raises copyright questions
The release of a witness’s image in the murder trial of South African athlete Oscar Pistorius has raised questions of copyright infringement.
News channel eNCA broadcast a still image of Michelle Burger on March 4 despite her request that no footage or photos of her be used. The image was also published by the Beeld newspaper.
Both eNCA and Beeld defended their actions, saying they took the image from publicly-available sources, not from within the court – which would be banned.
Pistorius is charged with murdering his girlfriend Reeva Steenkamp at their home on February 14, 2013. Although the trial is shown live, a court order allows witnesses to stop the media from using footage or images of them. In those cases, only audio footage is used.
The Burger incident has raised questions about whether the university lecturer, a neighbour of Pistorius, could file a claim for copyright infringement.
In a post on the Afro-IP blog, Caroline Ncube, associate professor of the University of Cape Town, said there is a “clear” case for infringement because the image was published without authorisation.
“It appears evident that no permission or authorisation was given by the copyright holder to the newspaper or TV channel to reproduce or broadcast the picture. Therefore there was infringement,” she said.
But it is unclear who the rights owner is, she added, as it could be Burger herself, her employer – the University of Pretoria – or the photographer.
Under section 22 of the South African Copyright Act, a rights owner can assign its copyright to a third party, said Ncube, which would then hold all the exclusive economic rights in the work.
“It is possible that Burger's employer has taken assignment of the copyright in the photograph because it asserts copyright in most of its webpages and has the following notice affixed to the foot of its webpages: ‘Copyright © University of Pretoria [year]. All rights reserved’.
Whoever the rights owner is will be able to sue for remedies, which include royalties, said Ncube.
“There is no telling whether a copyright infringement claim will be brought in this matter, but ... there is a strong case for infringement,” she said.
Since the release of Burger’s image, the judge in the case, Thokozile Masipa, has banned any photos of witnesses who have requested that only audio footage of them is used. Masipa said an investigation into any potential violation of the court order will follow.
