Italy recently celebrated the one-year mark until the start of the Winter 2026 Olympics in Cortina. As with any Olympics, IP (intellectual property) questions abound when iconic landmarks and big events come together. This past Summer’s Olympics in Paris triggered such an analysis from Kat Friend, Vanessa van Coppenhagen (Spoor & Fisher) as the Opening Ceremonies used famous iconic landmarks as their celebratory canvas. So while our minds are full of images of the mountains in Cortina and memories of Paris, over to Vanessa to provide some perspective of the use of urban places as a stage from the South African perspective:
“Last Summer’s Olympic opening ceremony was catnip for this Guest Kat from the Mother City. The river Seine, the riverbank, floats, bridges, historic buildings, staircases, statues, rooftops, balconies and window frames were the stage for a spectacular expression of Liberty, Equality and Fraternity, along with enchanté, synchronicity, sisterhood, sportsmanship, festivity, darkness, solidarity, solemnity and eternity. Lady Gaga performed in Dior pink plumes on the banks of the Seine, Celine Dion in Dior crystal raindrops at the Eiffel Tower and Axelle Saint Cirel in the Tricolour on the roof of the Grand Palais. France opened up her splendid jewellery box of Burlesque, Cancan, Dior, Delacroix, Edith Piaf, Jardins á la Francaise, La Marseillaise, Les Misérables, Louis Vuitton, Louvre, Marie Antoinette, Minions, Notre-Dame, Parkour, Vasqu-Montgofière and Verlaine’s Liaisons Dangereuses and let all of us play with these treasures for three delicious hours.
Speaking of playing with cities and their iconography, Mr Ian Padgham is extraordinarily playful in the iconic landmark space. Mr Padgham is a Bordeaux-based artist and filmmaker who has created visual effects videos of giant red hearts flying out of La Défense and popcorn popping out of Warhols displayed at the MoMA. For advertisers, he’s created JACQUEMUS handbags driving through Paris and a giant Maybelle mascara wand applying mascara to the surreal eyelashes of a New York train and a London bus.
CGI (computer-generated imagery) has been spotted in marketing campaigns in South Africa too, with brands incorporating iconic landmarks into their branding campaigns and leveraging their popularity.
Channelling a beloved icon of another stylish city, to paraphrase Carrie Bradshaw, we couldn’t help but wonder, in the wave of CGI and VFX, what legal impediments there may be to advertising and incorporating iconic landmarks and what might attract IP liability.
Legally Speaking
Under the Copyright Act, 1978 (the “Copyright Act”), artistic works in the form of buildings and models and drawings, artistic, and technical designs and specifications, relating to those buildings, are eligible for copyright protection. The Copyright Act defines the term “artistic works” to include “works of architecture or models of buildings” (section 2(1) read with section 1(1)); and “building” to include any structure (section 1(1)). Under section 3(1), “a work of architecture erected in the Republic or any other work incorporated in a building or any other permanent structure in the Republic, shall be eligible for copyright” (section 3(1)).
The Copyright Act provides for two specific and carefully formulated exceptions to the exclusive rights of copyright owners of artistic works in buildings. One of them is only engaged where the building is situated in a street, square, or similar public place.
Section 15(3) provides that:
“The copyright in an artistic work shall not be infringed by its reproduction or inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such work is permanently situated in a street, square, or similar public place”.
Section 15(1) provides that:
“The copyright in an artistic work shall not be infringed by its inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such inclusion is merely by way of background, or incidental, to the principal matters represented in the film, broadcast or transmission”.
Where the iconic landmark in question is not located on a street, square or similar public place, then the exception under section 15(3) is not available, and the enquiry under section 15(1) is whether or not the inclusion “is merely by way of background, or incidental, to the principal matters represented in the film, broadcast or transmission”. So, there are two tests for permissible inclusion here: a “public place test” and a “background or incidental“ test”.
In the decision of R v Innes ((1925) CPD 161) which will soon be marking its centenary, “[t]he accused Innes was charged on September 8th 1924, in the Magistrates’ Court, Swellendam with contravening section 9 of [the Police Offences Act] 1882 in that he was found drunk in a public place, namely in the Magistrates’ Court of Swellendam”. The Court held that a space is public when everyone has general access to it. Public streets, squares and bridges, public parks, recreation grounds, sports grounds, beaches, shopping centres, markets, museums, art galleries, libraries and cemeteries are therefore, on this reasoning, public places.
International Incidents
Although there is no case law on the “background or incidental” test in South Africa, there is helpful case law from the Antipodes and England on the use of icon landmarks. From Australia, we know that the deliberate or intentional inclusion of a copyrighted work is not decisive. In Thompson v Eagle Boys Dial-a-Pizza Australia Pty Ltd [2001] FCA, the Federal Court of Australia considered section 67 of the Australian Copyright Act, which is similar to section 15(1) of the South African Copyright Act. The Court considered an advertisement that included a competitor’s logos in which an explicit comparison was made between the competing products and held that the deliberate incidental use was the fundamental purpose of the advertisement. Although the inclusion was deliberate, it was also incidental.
In England, the “incidental” test laid down by the Appeal Court in Football Association Premier League Ltd v Panini UK Ltd [2004] FSR was expressed in this way:
“having regard to the circumstances in which the allegedly infringing work was created, what is the reason for the inclusion of the original copyright work in the allegedly infringing work? In considering the reason for the inclusion, the commercial reasons as well as the artistic reasons for such inclusion are considered relevant. In this decision, the inclusion formed a central aspect of the allegedly infringing work from a marketing point of view.”
So, the incidental inclusion test depends on the facts. Now, what about associating products or services with the attributes of an iconic land mark, deliberately, not to compare, but so as to gain an advantage, by association?
Falsely ascribing a characteristic to one’s products in respect of its origin, class or quality have been held to constitute unfair competition. Conduct which takes unfair advantage of the advertising value of a symbol, in the form of an iconic landmark, has not yet been decided by our courts. This conduct is referred to a “leaning on” or “assimilation”. According to Professor Andries van der Merwe (University of Pretoria), this is potentially what this Guest Kat calls “paw-swipe territory”:
“Once a symbol has established a characteristic in the form of an advertising value that contributes to the maintenance, if not enhancement, of an enterprise’s goodwill, its ability to perform such a function can naturally be harmed. Harming will be found in the dilution of its advertising value by the action of another enterprise giving rise to a violation of the subjective right to goodwill.
The subsequent step is again to assess if such a violation has taken place in a legally reprehensible manner. It is apparent that a conduct of using another enterprise’s symbol that has generated an advertising value in causing its dilution is under appropriate circumstances contra bonos mores resulting in the unlawfulness of a conduct.”
Local Cases
Under South African law, unlawful competition is a delictual action (a tort), requiring wrongfulness, fault, causation and loss to be proved. The right protected is the right to goodwill or the right to attract custom. Public policy is the norm to used to determinethe unlawfulness for this action, being the general sense of justice of the community, the boni mores manifested in publicly accepted commercial morality. So, this depends on what the community thinks is right or wrong.
Filming By-Laws
Having padded around the “public place” and “background or incidental inclusion” tests, this GuestKat looked at the City of Cape Town’s Filming By-Laws which regulate filming activities within the Mother City. She did not need stay here too long as it was straightforward enough (and a little dry for her soft paws).
Section 3(1)(a)
This section provides that “no person may carry out any filming on Council land except with the written permission of the City Manager”.
- The term “Council land’’ is defined in the Filming By-Laws as “any land the ownership of which is vested in the Council [of the Municipality of Cape Town] or which is under the control of the Council”.
- The term “filming” is defined as “the recording of images, moving or still, whether on film or by video tape, electronically or by any other means, but excludes the video recording of a wedding ceremony or other private celebration or event for the purpose of making a video record thereof for its participants, or the recording of current affairs or news for immediate release”.
Section 3(2)
This section stipulates that where filming does not take place on Council land, but “filming-related activities” take place on Council land the written permission of the City Manager is required. Under section 3(3), filming-related activities include, but are not limited to, the interruption of traffic on public roads; the interruption of pedestrian traffic on sidewalks; wires or cables running across or over sidewalks or public roads; the use of generators, tripods or dollies on sidewalks or public roads; activities that an impact on public parking, public open space or beaches; and activities that will generate noise and air pollution.
(The City of Cape Town has recently published the Draft Filming By-Law, 2023 which will substitute the City’s Filming By-Law of 2005. The Draft Filming By-Law was published for public comment from 23 June to 24 July 2023, but has not come yet into effect.)
Building Blocks for the Future
If the building is on or at a street, square, bridge, park, recreation ground, sports ground, beach, shopping centre, market, museum, art gallery, library, cemetery or a court then copyright does not impede the inclusion. However, city by-laws will require a permit for filming and filming activities. Recording news of the day for immediate release and making a video of private celebrations and events (and specifically weddings) is not considered filming.
If the building is not on or at a public place, then whether or not copyright is an impediment depends on whether the inclusion is by way of background or incidental and the reasons (both commercial and artistic reasons) for the inclusion are relevant.
Leaning in or assimilation by taking unfair advantage of an iconic landmark and its economic expression has not been decided by our courts but may constitute unlawful competition if the conduct offends the legal convictions of the community.
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