There are numerous precedents for artworks that make unauthorised use of copyrighted material, both in contemporary art, and in the broader history of art. A couple of examples of contemporary work that could make for a close formal comparison to 'Song of Solomon' in terms of their use of copyrighted material would be Candice Breitz's video work, such as 'Mother' and 'Father' (2005), and Jennifer and Kevin McCoy's work like 'Every Shot, Every Episode' (2000) and 'Every Anvil' (2001). Breitz samples and manipulates fragments of Hollywood movies; the McCoys minutely catalog and reorder movies and cartoons according to self-made rules of form or content.
This notwithstanding, we have drawn up a brief overview of the potential legal problems the work presents, in the South African legal context particularly. While asserting our right to fair use, and our *ahem* 'good intentions' in this artwork - to pay tribute to Solomon Linda and to the processes of unauthorised appropriation and remixing that have allowed the development of most musical forms (especially the last century of popular music) - this work is also intended to be provocative; to antagonise and test the breadth of application of intellectual property law.
"Song of Solomon" and potential liability
6 October 2006
"Song of Solomon" makes use of hundreds of 2.18 second samples (reproductions of sound recordings on a computer hard drive) of numerous versions of the compositions "Mbube", "Wimoweh" and "The Lion Sleeps Tonight".
The reproduction of each sample on a computer hard drive, which takes place in order for the Morpheus application to operate, constitutes infringement of the copyrights in the composition and sound recording of the original work that has been sampled, as well as of the performers’ rights granted by the Performers’ Protection Act 11 of 1967. The broadcast of each sample, as would occur during the exhibition of the work to the public, would again infringe on these three sets of intellectual property rights.
None of these uses seem to fall within the exempted uses enumerated by ss 12-19B of the Copyright Act 98 of 1978, nor are they exempted by any other provisions of that Act or provisions of the Performers’ Protection Act.
The enforcement of these provisions may result in several consequences for the artists:
interdict preventing the work from being exhibited such that the samples are broadcast to the public;
delivery-up of the infringing reproductions (this would most likely take the form of delivery-up of the infringing artwork itself);
damages in the amount of reasonable royalties that would have been paid for the licencing of the reproduction and broadcast of the musical works;
punitive damages, to be decided by a court (no guidelines are given by the Act); and
criminal fines and imprisonment.
A ‘place of public entertainment’ that allows such a work to be broadcast would incur the same penalties. It is uncertain whether a gallery or museum exhibiting the work would be construed as a ‘place of public entertainment’, but it seems likely that it could be so construed.
It is possible that the scope and enforcement of these intellectual property rights, particularly the notion of "fair dealing" in the general exemption provided by s 12 of the Copyright Act, should be interpreted in accordance with the Constitutional right to freedom of expression, particularly the right to artistic creativity, analogously with the Sachs J’s concurring judgment in Laugh It Off Promotions CC v South African Breweries International (Finance) B.V. (CC). The question must however remain moot until it can be raised in the course of legal proceedings. It must be made clear that such litigation can be prohibitively expensive, and the outcome unpredictable.
The artists are aware of the risk that the work infringes a range of copyrights in the abovementioned ways. The work cannot be altered so as not to potentially infringe upon copyrights as noted above. The risk of infringement is part of the artistic integrity of the work. It is the intention of the work to be antagonistic to the framework of intellectual law that has been adopted by the South African legal system, and the artists have consciously interrogated the limits and bounds of that law. However, they believe that intellectual property law generally, and copyright law especially, has been overzealously extended and enforced worldwide as well as in the South African legal system. They furthermore believe that the scope of intellectual property laws should be limited in accordance with the Constitutional right to freedom of expression, as suggested above, and for the benefit of long-standing processes of cultural and artistic development.