Feldman NO v EMI Music SA (Pty) Ltd/ EMI Music Publishing SA (Pty) Ltd (268/2008) [2009] ZASCA 75; 2010 (1) SA 1 (SCA); [2009] 4 All SA 307 (SCA); 2009 BIP 294 (SCA) (1 June 2009)

Feldman NO v EMI Music SA (Pty) Ltd/ EMI Music Publishing SA (Pty) Ltd (268/2008) [2009] ZASCA 75; 2010 (1) SA 1 (SCA); [2009] 4 All SA 307 (SCA); 2009 BIP 294 (SCA) (1 June 2009)

The Supreme Court of Appeal held that the appellant, as a co-author, cannot claim the whole of the reasonable royalty for infringement of works of joint authorship unless there is an agreement or cession of rights from the other co-authors. The particulars of claim failed to aver the basis for entitlement to all damages, rendering the claim excipiable. The court further found that the claim for punitive damages must also be limited to the appellant's share. The exceptions based on vagueness regarding royalties were dismissed, as section 24(1B) of the Copyright Act allows for an enquiry into quantum where the extent of royalties is unknown. The exception based on mutually contradictory...

Citation
[2009] ZASCA 75
Parties
Appellant: David Feldman N.O.; Respondent: EMI Music SA (Pty) Ltd / EMI Music Publishing SA (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2009
Case Number
268/2008
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division, Exceptions to Particulars of Claim
Outcome
Appeal dismissed as to the first exception; appeal upheld as to the second and third exceptions.
Judges
Farlam, Brand, Maya, Mhlantla, Hurt
Legal Topics
Copyright Infringement, Joint Authorship, Exceptions to Pleadings, Reasonable Royalty, Punitive Damages
Intellectual Property Civil Procedure Copyright Infringement Joint Authorship Exceptions to Pleadings Reasonable Royalty Punitive Damages

Case Brief

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Parties

David Feldman N.O.

Appellant

EMI Music SA (Pty) Ltd / EMI Music Publishing SA (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division, Exceptions to Particulars of Claim

Legal Issues

  1. 1 Whether a co-author of a work of joint authorship may sue for all damages resulting from infringement without joining other co-authors or making out a case for such entitlement.
  2. 2 Whether the particulars of claim are vague and embarrassing for want of particularity as to royalties received by the defendants.
  3. 3 Whether mutually contradictory averments in the particulars of claim render the claim excipiable.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant, as a co-author, cannot claim the whole of the reasonable royalty for infringement of works of joint authorship unless there is an agreement or cession of rights from the other co-authors. The particulars of claim failed to aver the basis for entitlement to all damages, rendering the claim excipiable. The court further found that the claim for punitive damages must also be limited to the appellant's share. The exceptions based on vagueness regarding royalties were dismissed, as section 24(1B) of the Copyright Act allows for an enquiry into quantum where the extent of royalties is unknown. The exception based on mutually contradictory...

Court Disposition

Appeal dismissed as to the first exception; appeal upheld as to the second and third exceptions.

Orders

  • The appeal against the upholding of the first exception is dismissed.
  • Save as set out in paragraph 1, the appeal succeeds.