David Feldman N.O. v EMI Music SA (Pty) Ltd / EMI Music Publishing SA (Pty) Ltd

The appellant was the executor of the deceased estate of singer Brenda Fassie. He instituted two actions claiming copyright infringement damages against EMI Music Publishing (Pty) Ltd and EMI Music (Pty) Ltd. The claims concerned 157 works, the vast majority being works of joint authorship where the late Ms Fassie had collaborated with others to compose music and lyrics. The appellant claimed ownership of copyright and alleged continuous infringement by the respondents from 1980 (or 1993 in the second action), seeking damages equivalent to reasonable royalties and punitive damages. The respondents delivered notices to cure vagueness and embarrassment, and subsequently filed exceptions on three grounds: (1) lack of averments necessary to sustain the cause of action regarding locus standi (the 'first exception'); (2) vagueness regarding royalties received (the 'second exception'); and (3) mutually contradictory averments regarding copyright ownership (the 'third exception'). The court a quo (Jajbhay J) upheld all three exceptions.

• Whether a co-author of a work of joint authorship has locus standi to sue alone for all damages resulting from copyright infringement without joining other co-authors or making averments as to entitlement to the whole claim
• Whether particulars of claim are vague and embarrassing when they lack specifics regarding royalties received by defendants, where section 24(1B) of the Copyright Act provides for an enquiry into quantum
• Whether pleading mutually contradictory claims (copyright infringement versus contractual royalties) in the alternative renders particulars of claim excipiable

1. The appeal against the upholding of the first exception is dismissed. 2. Save as set out in paragraph 1, the appeal succeeds. 3. The respondent is ordered to pay the appellant's costs of appeal, including costs of two counsel. 4. The order of the court below is altered to read: (a) The first exception is upheld; (b) Paragraphs 3 to 12 of the particulars of claim are struck out; (c) The plaintiff is given leave to amend the particulars of claim by notice of amendment delivered within 21 days of the date of judgment; (d) Save as ordered in paragraph (a), the exceptions are dismissed; (e) The plaintiff is ordered to pay the costs of the exceptions. 5. The period of 21 days runs from the date of delivery of the SCA judgment.

A co-author of a work of joint authorship under the Copyright Act 98 of 1978 is not entitled to sue individually for all damages resulting from copyright infringement without either: (1) joining the other co-authors in the action, or (2) pleading averments establishing a basis for entitlement to claim the whole (such as assignment, cession of rights by other co-authors, or an agreement at the time of creation giving the plaintiff entitlement to all fruits of the work). In the absence of such averments, the particulars of claim lack essential elements necessary to sustain the cause of action and are excipiable. However, lack of specific knowledge regarding quantum of royalties received by an infringer does not render pleadings excipiable where section 24(1B) of the Copyright Act provides a statutory mechanism (enquiry) to determine reasonable royalty damages.

The court made several non-binding observations: (1) Regarding the proportions in which co-authors share copyright proceeds, the court suggested that in the absence of agreement, circumstances surrounding creation of the work are relevant, and absent clear contrary indications, co-authors will hold equal undivided shares as tenants in common, though it was unnecessary to investigate this fully. (2) The court noted that 'punitive damages' under section 24(3) would ultimately be assessed as a lump sum to be shared pro rata by co-authors, and a defendant would be prejudiced if ordered to pay the full amount to one plaintiff while remaining exposed to claims by other co-authors. (3) The court observed that non-joinder may be raised on exception only if expressly referred to in the exception (citing Collin v Toffie 1944 AD 456), though it was unnecessary to decide whether the court below's decision on joinder grounds was correct since the exceptions contained no mention of non-joinder. (4) The court noted it would have been more natural to plead the contractual claim as the main claim with the infringement claim in the alternative, rather than vice versa.

This case establishes important principles regarding copyright infringement claims in South Africa where works of joint authorship are involved. It clarifies that a co-author cannot claim all damages for copyright infringement without establishing entitlement to the whole (through assignment, cession, or agreement), and must plead the basis for such entitlement. The judgment also confirms the proper scope and purpose of the enquiry mechanism in section 24(1B) of the Copyright Act 98 of 1978, recognizing it as a statutory remedy for situations where a plaintiff lacks knowledge of the extent of royalties received by an infringer. The case provides guidance on pleading requirements in copyright matters and reinforces established principles regarding alternative pleading in civil procedure.