[pp.int.general] Fwd: [Afro-IP] South Africa: misuse of personality rights in an advert

[Amelia Andersdotter]

this south african court concluded that personality rights in commercial 
circumstances are to be considered very distinct from intellectual 
property rights (amongst other things), although they do appear to have 
taken the status of "moral rights" in the european sense in the RSA 
verdict.

it's a not uninteresting issue.

-------- Original Message --------
Subject: 	[Afro-IP] South Africa: misuse of personality rights in an advert
Date: 	Sun, 17 Jul 2011 19:07:36 +0200
From: 	Darren Olivier <darrentrentolivier at googlemail.com>
Reply-To: 	afro-ip+owners at googlegroups.com
To: 	afro-ip at googlegroups.com



<http://3.bp.blogspot.com/-IAmJjuRcSzc/TiMUFGch5hI/AAAAAAAABTc/udelMsBOFBY/s1600/nophoto.bmp>This 
latest case 
<http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPJHC/2011/56.html&query=mclean> 
from the Saflii database details the drama 
<http://www.mmegi.bw/index.php?sid=7&aid=2182&dir=2010/May/Thursday6> 
between two South Africa celebs. Cycling rock star Andrew Mclean’s 
<http://twitter.com/#%21/AndrewMclean> company and shop Cycle Lab 
<http://www.cyclelab.com/> were called upon to defend claims by ex Miss 
South Africa and business personality Basetsana Kumalo 
<http://www.basetsanakumalo.com/> 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 
<http://en.wikipedia.org/wiki/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.”/
/**

*Comments*

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.

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