'Is the spear mightier than the artist's brush?': Umkhonto v Umdwebi Bhulashi in perspective

Abstract

Owen Dean is Professor of Intellectual Property Law and Incumbent of the Anton Mostert Chair of Intellectual Property Law, Faculty of Law, Stellenbosch University. Mabel Jansen is Judge of the North Gauteng High Court. A South African artist, Brett Murray, painted a portrait of the South African President, Jacob Zuma, which showed him with his genitals exposed. This painting, called “The Spear,” was exhibited at the Goodman Gallery in Johannesburg. Murray explained that the painting was a satirical commentary on the morals and conduct of President Zuma. The painting and its exhibition, as well and coverage of it in the media, in particular by the newspaper City Press, gave rise to a furore. It was alleged that the painting impinged on the dignity and right of privacy of the President. Court proceedings seeking the removal of the painting from the gallery and the cessation of public dissemination of pictures of it were launched on behalf to President Zuma. Before the matter came to court individuals defaced the painting by painting a large smear of red paint over the controversial portion of it, thus obliterating the material causing offence. This caused a further uproar. Questions of defamation, the right of privacy and protection of dignity were raised and they were weighed up against the fundamental right of freedom of speech. Copyright and other intellectual property rights came into consideration. The defacement of the painting precipitated a settlement of the court proceedings before the matter came before the court. The Goodman Gallery and City Press conceded the relief sought in the pending litigation and the matter was largely defused from a practical point of view. However, in this article the authors canvass the legal issues which the incident raised, but were not ventilated before the court by virtue of settlement of the litigation. They express their views on the merits of the various possible causes of action.