IP ENSight | 5 December 2018

Copyright: guitar hooks, goat-head statues and cheese

by Waldo Steyn

It’s been a busy period for copyright, so let’s look at some of the more interesting stories. Some of these stories will have people in South Africa shaking their heads.

Music: ushering in a new era in damages

A Philadelphia court has awarded a songwriter by the name of Daniel Marino the sort of damages that you only really get in the USA: USD44-million. This related to the fact that Marino had not been credited with being one of the songwriters of a song called Bad Girl, which appeared on Usher’s 2004 album Confessions, and sold some 10-million copies. Marino’s case was that he had been responsible for the “guitar hook, tempo and chord progression” of the song. The court decision means that Marino will, in future, also share in streaming royalties.

It’s important to appreciate that with music, a number of different rights of copyright can be involved at the same time. In South African copyright law, for example, there’s copyright in the song as a “musical work”, in the actual recording of the song as a “sound recording” and, if there’s a video, there will be copyright in that as a “cinematograph film”.


The Satanic Temple (“TST”), a Salem, Massachusetts-based organisation that says that it doesn’t actually worship Satan but rather seeks to “encourage benevolence and empathy among all people”, recently sued Netflix and Warner Brothers for copyright infringement. The claim related to the apparently unauthorised use of a statue that belongs to TST. This use occurred in four episodes of a Netflix series known as Chilling Adventures of Sabrina. The statue in question is called Baphomet with Children, and it’s an ugly thing involving a creature that has a goat’s head and the chest of a man. It’s claimed that this unauthorised use is “injurious to TST’s business”, because in the Sabrina series, the statue is “associated with evil, cannibalism and possibly murder.” 

Once again, US-style damages were sought: USD50-million. Perhaps in justification of the large amount, TST said this in its papers: “What makes this case particularly striking and significant is that it arises in the context of Defendants who are highly sophisticated media production and distribution companies, which blatantly misappropriated Plaintiff’s unique expression of an idea even though they have a long history of vigorously protecting their own intellectual property.”

Fortunately, this matter has been settled amicably, although the details have not been disclosed. 

Again using the South African Copyright Act, 1978 as a basis, in South Africa, a statue does enjoy copyright protection as an “artistic work”. 


The copyright story that’s had everyone talking was the one involving a cheese product called Heksenkaas, which is produced by a Dutch company called Levola. The company was so concerned about a competitive product called Witte Wievenkaas that it sued for infringement – of copyright. The Dutch court did what courts throughout the EU do when they get difficult cases, it referred the matter to the Court of Justice of the European Union (“CJEU”) for guidance.

To the surprise of absolutely no-one, the CJEU said that the European Copyright Directive does not cover tastes: “The taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the directive.” It went on to say this: for copyright purposes, not only must there be an original intellectual creation, but there must also be an expression of that creation that makes it “identifiable with sufficient precision and objectivity.” A taste cannot be identified with precision and objectivity because, as we all know, taste is subjective rather than objective.

Perhaps this is simply another way of saying that copyright does not protect ideas, but rather the expression of ideas, a principle refer to as the “idea/expression dichotomy.” A taste is essentially an idea, one that cannot be identified objectively (well, not yet, future technology may change this). 

So, hard cheese for the Dutch company! The decision does mean that it will be extremely difficult if not impossible to protect tastes by way of intellectual property law. Although there have also been attempts to protect tastes through trade mark law, it seems highly unlikely that a trade mark application will succeed in Europe because of the so-called Sieckmann rule, which says that in order to be registrable, a mark must be sufficiently clear, precise, self-contained, easily accessible, intelligible, durable and objective. As for the USA, well, they may protect things such as smells (such as the smell of Play-Doh), but tastes are probably a step too far. A few years back, we wrote on the case of New York Pizzeria v Ravinder Syal, where the finding was that “it is unlikely that flavours can ever be inherently distinctive because they do not automatically suggest a product source.” 

Copyright is a flexible, dynamic and ever-changing area of the law. Yet, it’s often overlooked as a valuable intellectual property asset. It shouldn’t be!


Waldo Steyn

IP | director
cell: +27 82 382 6404

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