The Copyright You Think You Own Might Not Be Yours – Understanding Ownership in South African Copyright Law

It’s one of the most common and costly assumptions in South African business: that because you paid for something to be created, you own the copyright in it. A website, a logo, a product photograph, a marketing campaign, a bespoke software platform – businesses commission these things every day, often for significant sums, and assume that payment equals ownership. South African copyright law, however, tells a different and sometimes very inconvenient story.

Understanding who actually owns copyright in a commissioned work is not just a legal technicality. It determines whether you can update your website without permission, whether you can use that photograph in a new campaign, and whether you can prevent someone else from using work that you paid to create.

How South African Copyright Ownership Actually Works

The Copyright Act 98 of 1978 governs copyright in South Africa. Under this Act, copyright vests automatically – there is no registration system for copyright in South Africa. The moment an original work is created and reduced to a material form, copyright comes into existence.

The critical question is: in whom does it vest?

The default rule under South African copyright law is that copyright belongs to the author – the person who actually created the work. This seems intuitive until you apply it to the business context, where commissioned work is the norm rather than the exception.

There is a limited exception for works created by employees in the course and scope of their employment: in that situation, the employer becomes the first owner of copyright. But this rule applies only to genuine employees under a contract of employment – not to contractors, freelancers, or independent service providers, regardless of how closely they work with your business or how long the relationship has lasted.

For commissioned works created by an independent contractor – a freelance graphic designer, a web developer, a photographer working on assignment – copyright remains with the creator unless it has been specifically and validly assigned in writing. South African law is clear on this point: an assignment of copyright must be in writing and signed by the assignor to be effective.

What This Means in Practice

The real-world implications of this rule are significant and often surprise businesses when they first encounter them.

Consider a retail brand that commissions a freelance photographer to produce a library of product images. The shoot is completed, invoices are paid, the images are delivered, and the brand begins using them across its digital platforms and print materials. Two years later, the brand needs to license those images to a third-party distributor for use in that distributor’s own catalogue. The photographer, who has retained copyright throughout, is under no obligation to authorise that use and may well charge a further licensing fee.

Or consider a technology startup that engages an independent developer to build a custom inventory management system. The developer is paid in full. The system is deployed and becomes central to the business. When the startup later seeks to sell the business, a due diligence process reveals that the intellectual property in the software was never formally assigned. The startup does not own the software – it has a licence to use it, at best, and the terms of that licence were never clearly defined.

These scenarios are not hypothetical edge cases. They arise regularly in South African commercial practice, and they are almost entirely avoidable with proper contractual arrangements.

Assignments, Licences, and the Difference Between Them

Two mechanisms are available to address copyright ownership: assignment and licence.

A copyright assignment is a transfer of ownership. Once validly assigned in writing, the copyright moves from the creator to the assignee permanently. After assignment, the creator has no further rights to the work unless specifically reserved.

A licence, by contrast, grants permission to use the copyright work in defined ways without transferring ownership. Licences can be exclusive or non-exclusive, and their scope is determined by the agreement between the parties. A business operating under a licence must respect the boundaries of that licence – using the work in a manner or territory not covered by the licence constitutes infringement.

For most businesses commissioning creative or technical work, an assignment is the more appropriate arrangement: it provides certainty of ownership and eliminates the need to return to the creator for permission every time the work needs to be adapted or used in a new context.

The practical advice is straightforward: every time your business engages an independent contractor to create something – code, content, design, photography, or any other copyright work – a written agreement should be in place before work begins, expressly addressing copyright ownership. Retrofitting these arrangements after the fact is possible but more complicated, and it depends on the co-operation of a creator who may, by then, have their own reasons for not co-operating.

Getting Your Copyright House in Order

For businesses that have been operating without adequate copyright agreements, a structured review is worthwhile. This involves identifying the creative and technical works your business uses commercially, understanding the basis on which each was created – employee, contractor, or in-house – and addressing gaps through assignment agreements where ownership was never properly transferred.

It also means reviewing your standard service agreements and employment contracts to ensure that copyright provisions are comprehensive and accurate. Generic contract templates frequently get this wrong, either by omitting copyright provisions entirely or by including clauses that are not effective under South African law.

At Wolmarans and Susan Inc., we assist South African businesses in understanding what they own, securing what they should own, and structuring future engagements correctly from the outset. Copyright disputes are expensive and disruptive – they are also largely preventable. If you have questions about copyright ownership in your business, we invite you to reach out to our team.