Introduction
“Image rights”, “image”, and “likeness” are often cited by scholars and practitioners alike without providing clear definitions of these concepts. In fact, no clear legal definition of what an individual’s image encompasses currently exists in South Africa but because these concepts are often cited, articles allude to the fact that an image right is recognised in South Africa (which is not the case). Despite it not being a discreet right in South Africa, image rights are not a alien concept in South Africa. The term is used regularly in professional athletes’ player-contracts and licensing agreements but its application in the modern world extends beyond professional athletes and is relevant to any individual, such as an influencer, whose image has accumulated a commercial value. In Fraley v Facebook[1] the court held the following:
“In a society dominated by reality television shows, YouTube, Twitter, and online social networking sites, the distinction between “celebrity” and a “non-celebrity” seems to be an increasingly arbitrary one”.
Thus, one could argue that any individual who commodify their image online and generate an income thereof should be entitled to protect themselves against the unauthorised use of their image. The commercial value of an individual’s image is widely accepted but there is no international standard or harmonised legal concept. Different jurisdictions defined the image of the individual, where such a right is recognised, differently.
Working Definition of the Term 'Image' in South Africa
In an attempt to provide legal clarity on what constitutes an individual’s image in South Africa, the Author defined the image to include the following:
“The name (including initials or nickname), likeness (or physical appearance), voice, signature, reputation, distinctive skills, mannerisms or gestures, slogans or catchphrases, distinctive manner of dress or personal adornment, personal history or life story, or any other indicium or indicia which serve to identify the individual person and differentiate them from others in the minds of the public or of consumers, and which has actual or potential commercial value for purposes of marketing, advertising, promotion or branding of products or services or to attract customers when affixed to or portrayed on or with reference to a product, service or brand.”[2]
This definition of “image” is rather broad since a broad range of aspects may serve to make the individual identifiable.[3] In practice, an individual’s image may have significant commercial value, and the aspects of it may be highly exploitable for commercial purposes (specifically in the context of endorsement, marketing and advertising of brands, products, and services).
Individuals who elect to commodify their image may experience loss or harm where the image is exploited by third parties without the consent of the individual. Pure economic loss (in the form of loss income) is often suffered by these individuals who commodifies their image to generate a livelihood. Where no image right exists, the question remains, what are the legal remedies available to individuals whose image is being used without their consent by third parties for commercial purposes outside a contractual relationship.
The Common Law of Delict [4]
In South Africa, the most common legal remedy for an image rights infringement can be found in the common law of delict although not without its challenges.[5] In accordance with the common law of delict, the plaintiff can either rely on the actio iniuriarum, actio legis Aquiliae and in limited instance the action for pain and suffering if the requirements for the respective actions are met.
The actio iniuriarum can assist a plaintiff if any of their recognised personality rights has been infringed and they can claim satisfaction. This was seen in Kumalo v Cycle Lab (Pty) Ltd, which serves as the only matter that dealt with what could be described as an image rights infringement in South Africa. The issue with theactio iniuriarum is that the primary concern of these individuals is to recover patrimonial loss for the financial loss they suffered rather than to claim satisfaction. While pure economic loss may be recovered under the actio legis Aquiliae (when a personality right infringement occurred), the plaintiff will only be successful if all five of the delictual requirements are satisfied. It was further determined that the requirement of wrongfulness may be a significant obstacle in matters relating to an image rights infringement when plaintiff wants to claim pure economic loss. Thus, great uncertainty remains whether such a claim will succeed.
To provide certainty on the application of the common law of delict in image rights infringement cases, it is imperative that law be further developed in this area. However, many such disputes are resolved between the parties without approaching the courts. As a result, the courts may not be afforded the opportunity to develop the common law as required. Even if cases regarding image rights were to become more common before the courts, the casuistic development of the common law through case-by-case litigation and eventual court judgments will always be less flexible, efficient and desirable in dealing with the law’s response to rapid commercial and technological developments in practice. Therefore, it is submitted that a discrete and purpose-built legislation is the best way to address image rights infringements in South African law.
Benefits of Promulgating Image Right Legislation
There are plenty of reasons why legislation is needed to curb image rights infringements. One reason is the rapid development of technology. Social media disseminated content daily on various social media platforms which means it is becoming more and more difficult to protect oneself from the unauthorised use of one’s image. Furthermore, the developing phenomenon of digital deepfakes created through the means of artificial intelligence further poses a threat to the image of an individual. Statutory regulation will provide a legal definition of what constitutes the image of an individual, which aspects of such image will be protected, what an “image right” is as well as clearly set out when an infringement occurs. Scholars such as Mostert and Cruz, further highlight that recognising an image right will not only provide legal clarity but it will also protect interests such as a dignitarian/autonomy interest (“by affording a person control of their image, the law affirms respect for their dignity and autonomy, that is, their freedom to live life and exercise control over their own image as they choose”) and economic interest (“image rights ensure that benefits accrue to the individual whose image is being used to generate value while preventing others from profiting through unauthorised and often deceptive use of that person’s image”).
Statutory regulation of image rights could also more easily address the need for balancing of constitutional rights in this context, by, for example, expressly providing for exemptions from liability for infringements and special defences in infringement cases. One should bear in mind that Section 22 of The Constitution of the Republic of South Africa, 1996 allows for every citizen to have the right to choose their trade, occupation or profession freely. Considering the emergence of numerous non-traditional careers in the twenty-first century, this right is especially relevant today. Blogging, vlogging, influencing and being a professional personality are all trades, occupations, and professions that have emerged in the last few years and are now dominating the social media industry. For this reason, if an individual chooses to brand themself as a commodity, they are entitled to do so without unlawful interference from third parties and should enjoy the necessary protection.
Another reason why statutory regulation of image rights would be beneficial is because it would be most efficient and, importantly, speedily address the rapid development in technology which enables image rights infringements to occur more easily and more frequently and lastly, statutory regulation would be able to prescribe appropriate remedies best suited to for those individuals whose image has been exploited.
Conclusion
It is evident that the development in this area of the law has been slow in comparison to some other jurisdictions such as the United States of America where an image right (referred to as a right of publicity) has been recognised in various states. This area of the law is also out of step with practical developments in commerce and, in particular, the entertainment industries. It has become necessary, with the recent development of technology, to provide image right protection. In modern commerce the individual’s image can constitute an asset with a substantial intrinsic commercial value and the best way to protect and recognise an individuals’ image, which encompasses their dignitarian and economic interests, in a country such as South Africa where no image right has been expressly recognised to date, is by promulgating legislation.
References:
[1] 830F. Supp. 2d 785 (N.D. Cal. 2011).
[2] See, Van Gensen, Layckan Inge, Legal protection of the individual's image against unauthorised commercial exploitation in South Africa : a critical evaluation of existing law and suggestions for law reform, S:SU, Chapter 3-5 (2023), https://scholar.sun.ac.za/items/a0161c7e-6525-47e7-8c44-c92f1a00d5ec.
[3] This is not unusual in this context. See Proactive Sports Management Ltd v. 1) Wayne Rooney, 2) Coleen Rooney (formerly McLoughlin), 3) Stoneygate 48 Limited, 4) Speed 9849 Limited [2010] EWHC 1807 (QB).
[4] More areas of the law that may be relevant to image rights infringements were identified and explored in thesis available at https://scholar.sun.ac.za/handle/10019.1/128896.
[5] Gensen, supra note 2.
Authored By: Dr Layckan van Gensen, BAccLLB (Stell); LLM (Stell); LLD; Admitted Attorney of the High Court of South Africa and Junior Lecturer at the University of Stellenbosch.
Edited By: Anamika Shukla and Souniya Dhuldhoya
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