Sunday 17 July 2011

Darren Olivier

South Africa: misuse of personality rights in an advert

This latest case from the Saflii database details the drama between two South Africa celebs. Cycling rock star Andrew Mclean’s company and shop Cycle Lab were called upon to defend claims by ex Miss South Africa and business personality Basetsana Kumalo that her rights were abused. The rights at stake were Basestana’s identity, image and dignity.

At issue was whether a photograph of Kumalo taken whilst she was shopping in Cycle Lab and subsequently used for advertising the shop, without obtaining her explicit consent, was unlawful.

Kumalo’s lawyers placed this Col Du Tourmalet in the path of Cycle Lab by claiming that the publication was an inuria* and damages on four separate grounds:

1. sentimental damages based on the actio iniuriarum*; Outcome : Successful
2. alternatively to 1. constitutional damages arising from a violation of the plaintiff’s rights to dignity and privacy; Not relevant because of 1.
3. patrimonial or special damages; Outcome : Not successful lack of evidence; and
4. unjustified enrichment. Abandoned

Although commented on in the judgement, claims based on passing off and trade mark infringement were not pleaded - see Afro Leo's comments below.

The amount of the damages award was held over for later determination.

Afro Leo found Judge Boruchowitz’s analysis of the law, the latin* and the claims a highly useful summary and directs readers to paras 12-24, 33, 40, and for the purposes of this blog:

“..the plaintiff’s image has been used in a misleading way. It generates the false impression that she endorses the lady-specific cycling products sold by the defendant and the defendant’s campaign to promote cycling among women. Use of her image in this manner constitutes a violation of her right to identity. The appropriation and misuse of the plaintiff’s image is wrongful and would be considered by persons of ordinary and reasonable sensibilities to constitute an iniuria which is deserving of legal protection.”
“In a broad sense, the plaintiff’s right to dignity has also been infringed.”

"...her photograph in an advertisement cannot be justified on the basis that she is a public figure or celebrity.”

“That the defendant did not use the plaintiff’s name in the advertisement is legally irrelevant”

“It is also not necessary for the attachment of liability that the photograph depict the plaintiff in an objectively degrading, humiliating or insulting manner.”

“Whilst it is true that the plaintiff uses a company to promote her image and persona, she has not thereby abandoned the right to choose who is to have access to her image. Personality rights are inseparably bound up with one’s personality. They do not exist independently of the human personality and are incapable of being transferred. There is a fundamental distinction between personality rights and intellectual or immaterial property rights which are capable of being transferred and have a separate legal existence”

“... animus iniuriandi (intent). It is well settled that what this encompasses is not only the intention to achieve a particular result, but also the consciousness that such a result would be wrongful.”

“no evidence has been presented by the plaintiff to prove that any diminution in the commercial value of her image or her patrimony was caused as a result of the publication of her photograph.

“...The immaterial or intellectual property rights held by the plaintiff exist independently of the plaintiff’s personality rights and are capable of separate enforcement. The plaintiff has not sought to enforce these rights. The appropriation by the defendant of the plaintiff’s image may constitute the delictual wrong of passing off but the plaintiff does not assert such claim. In foreign jurisdictions, the remedy of passing off is often utilised for the protection of advertising images. Neither was the plaintiff’s case pleaded or argued on the basis that the Court should recognise a free-standing or independent patrimonial immaterial property right to identity along the lines contended for by certain academic writers.”

The facts of this case sit wonderfully at the crossroads of passing off, trade mark infringement (not mentioned by the Judge), common law personality rights and the constitutional right to privacy. It seems clear that a case based on passing off would likely have succeeded and in many ways Afro Leo thinks that this claim would have been the cheapest and easiest to prove in the circumstances; there would be no need to show “intention”, the case could have been made and tried on the papers (instead of using the more risky and costly trial procedure) and damages (which have been equated to a “reasonable royalty” in other jurisdictions) may have been easier to prove.

It would also have been an interesting for the Judge to consider whether the use of the picture infringed any of the registered trade marks which arguably symbolise the image and identity of Kumalo ie the goodwill attached to her image. The argument is that her picture is trade mark use of a conceptually identical mark to the registered trade mark “Basetsana Kumalo” in the course of trade for goods/services identical or similar (Afro Leo has not seen the goods/services covered by the registered trade mark) to the registered trade mark such that confusion eg a perception of an endorsement, is likely to occur. Damages could have been claimed based in a “reasonable royalty”.

The case is also indicative of the attitude of many businesses in RSA who are prepared to "take a chance". One cannot help but admire Kumalo, who has not only worked hard to create her brand and image, AND is prepared to enforce it. It is ironic that another celebrity’s company sought to take advantage of her image, although one gets the impression that amounts she claimed were so puffed up that any attempt at a settlement became untenable.

Darren Olivier

Darren Olivier

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