In the world of social media influencers and content creators, a face can sometimes be more valuable than gold. Through strategic commercialisation, public figures now build empires based on their identity. This is possible because of one powerful tool – image rights. To understand image rights, we must first understand the right to identity.

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What are image rights?

Image rights are associated with the commercial exploitation of a person’s identity. These rights are commercialised through product and brand endorsements, appearance fees, marketing campaigns and sponsorships.

With the right contractual arrangements in place, a person’s name, photograph, signature and voice can become commercially valuable assets. By leveraging these elements, influencers and celebrities increase their visibility and become more recognisable to their target audiences.

How are image rights infringed?

The law protects a person’s identity from two primary forms of interference: being portrayed in a false light and misappropriation of identity. A person is portrayed in a false light when false statements are made about them. Misappropriation of identity involves using a person’s likeness without their consent for profit.

To prove infringement of image rights in court, three key elements must be shown. First, a person’s right to identity must have been violated. Second, the conduct must constitute wrongful behaviour. Third, the violation must have occurred with intent. Courts have discretion to determine whether a defendant’s conduct is wrongful, depending on all the surrounding circumstances.

In the case of Kumalo v Cycle Lab, former Miss South Africa Basetsana Kumalo visited a cycling shop and viewed their catalogue. An employee took her photo, which the store later used in an advertisement. Kumalo claimed that she had not consented to the photo’s use.

The Gauteng High Court agreed. It held that the use of Kumalo’s image without her consent would mislead the public into believing she endorsed the store. The court found this to be an infringement of her image rights and awarded her damages.

What protection is afforded by other forms of IP?

Copyright law can protect aspects of identity, especially portrait photographs or videos used in advertising or marketing. If a trader uses such works without permission, the copyright owner may seek damages, an interdict, or royalties in lieu of damages.

Trademark law provides another layer of protection. It allows individuals to create a monopoly over names, logos, catchphrases or signatures. For example, in South Africa, Taylor Swift owns a trademark registration for “TAYLOR SWIFT” applied to clothing. Tiger Woods owns one for “TIGER WOODS” covering golfing goods. These registrations grant them exclusive rights to use their names on these goods.

The Nike Air Jordan sneaker line is another example. Produced for and popularised by Michael Jordan in the 1980s, “JORDAN’S” has become a valuable trademark in the fashion industry.

Victims may also seek recourse under the doctrine of unlawful competition, specifically through a claim of passing off. This applies where a trader uses a person’s identity to misrepresent their goods or services, causing confusion among consumers.

In Fenty v Arcadia Group, Rihanna sued a company for selling clothing that featured her image. She argued it misled consumers into believing the products were hers or endorsed by her. The court found Arcadia guilty of passing off.

Similarly, in 2019, Kim Kardashian won nearly $2.8 million in a California lawsuit against a fast fashion company. The company had sold imitation outfits of her past looks while tagging her in their promotional material. The court found the company had misappropriated her likeness for profit and infringed her registered “KIM KARDASHIAN” trademarks.

Can image rights only be enforced through the courts?

While public figures may enforce image rights through court proceedings, alternative options also exist.

For instance:

  • The Advertising Regulatory Board (ARB)
    Individuals may approach the ARB if their image is used in advertising without consent. The ARB enforces the Code of Advertising Practice, which prohibits using a living person’s image in advertising without prior consent. Exceptions exist. For example, the ARB may permit depictions deemed reasonable and not unjustifiably exploitative. Background or crowd images may be acceptable, provided the person is not portrayed offensively or in a defamatory or humiliating way.
  • The Consumer Protection Act 68 of 2008 (CPA)
    The CPA prohibits suppliers from making misleading representations to consumers. A misleading representation includes a false affiliation or sponsorship. Using a celebrity’s likeness without consent to suggest endorsement could violate the CPA. In such cases, consumers may seek relief through the National Consumer Tribunal.

It is crucial for public figures to enforce their image rights. Doing so helps maintain the integrity of their image and preserves consumer goodwill.

When competitors misuse their image, profits may be diverted, and personal brands can suffer long-term damage. Proper contractual arrangements, along with licensing, endorsement and sponsorship agreements, are essential. Equally important are effective enforcement measures to protect these rights.