In an age where social media is a part of the dominant pop culture and integrated businesses are commenced online, a need for the protection of personality rights has become essential. The development of social media platforms is moving at a faster pace and requires a meticulous scope of protection. In the case of celebrities, the “image” of another is greatly dependent on public reception. This means if there is a focus on an individual due to a craft that they have made accessible for public entertainment or consumption, such an individual should be able to protect their “image” as a form of business and be allowed ownership of said craft.
The Stance of Common law
The baseline of protecting image rights is found under common law. The Common Law prescribes that an infringement on personal image rights occurs when someone uses the image of another without their consent for marketing, to defraud potential clients i.e. by producing fraudulent reviews, identity theft or making statements on behalf of the rightful owner of the image that is inauthentic but portray itself as authentic to the public.
As it stands, South African courts have not dealt with image rights extensively however, some relief is given to those who fall victim to image misappropriation. In the 2011 case of Kumalo v Cycle Lab (Pty) Ltd, an organisation used the image of former Miss South Africa winner, Basetsana Kumalo, without her permission to promote and advertise their products. The court held that Mrs Kumalo’s image was used in a manner that intended to mislead the public and insinuated that she was endorsing the products of Cycle Lab. This fraudulent conduct generated revenue. Legally the law of Delict gives relief through an action called the actio iniuriarum, which can be instituted to aid in similar matters to that of Mrs Kumalo. The actio iniuriarum remedy exists to offer relief to those who suffer harm to their dignity, which includes harm to their identity and privacy.
Furthermore, the common law criminalises of “Passing-off” and Trademark infringements. Passing-off refers to presenting the business of one person as the business of another unsuspecting person to defraud others. Individuals may also register their name, image or signature as a trademark in terms of the Trade Marks Act of 1993. If such a registered trademark is misappropriated a person or entity may approach the court for relief.
Celebrities and sports stars have often been regarded as those who offer art to the public for consumption on a large scale. Celebrities and sports stars therefore would be able to register their trademarks in the form of their names, musical compilations, photographs, signatures, slogans, and anything that can be justified as created by them. Similarly, social media influencers would be able to trademark their ideas, productions, and content.
South African Law today
The law does offer relief to those who have suffered harm to their personality rights however such relief is limited. South African law does not recognise any specialised proprietary rights regarding image nor does it recognise property rights of a person’s image, likeness, voice, or other aspects of a person who is well known to the public. Therefore, sports stars and celebrities have registered themselves as ‘brands” by way of trademark law. Trademarks are afforded a wide scope of protection but must be duly registered. Additionally, Copyrights may serve as a useful tool to those in the spotlight. Copyrights can protect the craft of a celebrity from being substantially reproduced by another. However, the duty to prove that the original work has been reproduced rests on the victim of the infringement and is subjective to the scale of reproduction. Lastly, the constitutional right to privacy is an inherent right that is privy to all and can offer relief to the intrusive nature of public surveillance.
Conclusion
Unfortunately, public figures continue to suffer fraudulent use of their images, craft and associations. The surge of social media influencing risks misappropriation by those who have the financial capacity to pay the legal cost involved with the registration of persons or craft a brand. Public figures face substantial financial loss yearly at the hand of fraudulent advertiser and vendors who misuse their brands to generate profit. Annually several public figures suffer a loss of fees in the form of royalties, licensing fees and a tainting of their image. There is an evident need to give judicial recognition for “stand-alone image rights”. There is hope that as the public image realm is becoming more accessible so too will the law that protects them.
Author: Candice Belang, Candidate Attorney