Conclusion
That concludes the analysis of the disputed elements of the definition of a "cinematograph film". The remaining
element of the definition, namely that with the use of "any mechanical, electronic or other device" the film must be
"capable ... of being seen as a moving picture" is clearly present in video games. For the reasons given video games
do in my judgment fall within the terms of the definition. Counsel for the appellant accepted that if that is the
conclusion, the appeal had to fail. He, quite correctly, did not dispute that Nintendo had established that it was the
author, as defined in section 1, of these video games insofar as they are cinematograph films; that Nintendo was a
qualified person (see 243BE of the judgment below), and that the video games (as cinematograph films) were
original.
Nintendo, on its part, did not attack the finding of the court a quo (at 244E; 245FG) that, on the papers, its
copyright in the video game Popeye had been assigned to its US company. My conclusion that the appeal stands to
be dismissed makes Nintendo's alternative causes of action based on copyright in the component (or underlying)
works, unfair competition and trade mark infringement, moot. That is so because of the width of the terms of the
interdict granted.
View Parallel Citation
The appeal is dismissed with costs, including those of two counsel.
(Corbett CJ, EM Grosskopf, Schutz and Plewman JJA concurred in the judgment of Harms JA)
Page 675 of [1996] 4 All SA 667 (A)
For the appellant:
RL Selvan SC and SS Cohen instructed by Webber Wentzel, Johannesburg
For the respondent:
P Ginsburg SC and O Salmon instructed by John & Kernick, Johannesburg