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Do I need permission for adaptation

Posted: Fri Jun 28, 2024 2:12 pm
by Frog3r
Do I need permission if I appropriate an artist idea and elements into my own work? I've done the Temptation of St Anthony of Salvador Dali but changed the elements. VEGAP, that represents the Spanish government referred me to DALRO in South Africa. DALRO referred me back to the original copyright holder saying it is an adaptation of the artwork. So, do I actually need permission?

Re: Do I need permission for adaptation

Posted: Fri Jun 28, 2024 4:46 pm
by AndyJ
Hi Frog3r and welcome to the forum,

Yes, generally you need permission from the copyright owner in order to adapt their work. The law varies according to jurisdcition. For instance in the USA, their fair use doctrine has been successfully used to justify appropriation art on a number of occasions, whereas in most countries in continental Europe, such as Spain, the law and the courts tend to favour the moral right of the artist not to have his work treated in a derogatory manner. If you live in South Africa, then South African copyright law is what you should follow. For historical reasons, South African copyright law tends to follow the UK legal heritage, meaning that the economic aspects of copyright are treated as more important than the moral rights of authors, and thus the exceptions to copyright protection, known as fair dealing, tend to be broader in scope.

Looking at the South African Copyright Act of 1978 we can see the following:

Adaption of an artistc work is defined as: "includes a transformation of the work in such a manner that the original or substantial features thereof remain recognizable" (section 1)

One of the rights given to authors of artistic works is the right to authorise adaptations of their work (section 7).

By virtue of various internatioanl treaties to which South Africa is a party, the rights accorded to citizens of South Africa are also extended to authors whose work originated in other states which are also signatories to the same international conventions. This includes Spain (section 4).

There is a general exception to the protection of copyright works: "In addition to reproductions permitted in terms of this Act reproduction of a
work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright." (section 13). This provision is then expanded upon with respect to artistic works in section 15, but unlike UK law, this doesn't, yet, include the exception for the purpose of parody, pastiche or caricature, which might have allowed you to adapt Dali's work without permission, provided that one of those categories applied to your version. The Copyright Amendment Bill of 2016 would introduce a parody etc exception, but the Bill has not yet passed into law, and as I understand it, things are moving forward a a slow pace (see this article).

Moral rights are still acknowledged under the Act: "Notwithstanding the transfer of the copyright in a literary, musical or artistic work, in a cinematograph film or in a computer program, the author shall have the right to claim authorship of the work, subject to the provisions of this Act, and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to the honour or reputation of the author ..." (section 20(1)). This right also extends to the artist's heirs and lasts for a further 50 years after his death. The Copyright Amendment Bill would see this term reduced to just the lifetime of the author, then lapse.

What I can't tell you is how the law is implemented by the South African courts, and how they apply the general fair dealing exception in specific cases. I believe they are fairly liberal in their interpretation, in line with a general aspiration by successive SA govenrmens to open up the South African economy to innovation, but I can't cite any particular cases which point in that direction.

To get this sort of insight, you should probably talk to a South African lawyer who specialises in Intellectual Property law, or find a suitable forum which discusses such issues from a South African perspective. Bear in mind that bodies such as VEGAP and DALRP exist to protect their members interests and so tend to be biased towards a stricter interpretation of the law.