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<font size="-1">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. <br>
<br>
it's a not uninteresting issue.<br>
</font><br>
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<th valign="BASELINE" align="RIGHT" nowrap="nowrap">Subject: </th>
<td>[Afro-IP] South Africa: misuse of personality rights in an
advert</td>
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<th valign="BASELINE" align="RIGHT" nowrap="nowrap">Date: </th>
<td>Sun, 17 Jul 2011 19:07:36 +0200</td>
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<th valign="BASELINE" align="RIGHT" nowrap="nowrap">From: </th>
<td>Darren Olivier <a class="moz-txt-link-rfc2396E" href="mailto:darrentrentolivier@googlemail.com"><darrentrentolivier@googlemail.com></a></td>
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<th valign="BASELINE" align="RIGHT" nowrap="nowrap">Reply-To:
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<td><a class="moz-txt-link-abbreviated" href="mailto:afro-ip+owners@googlegroups.com">afro-ip+owners@googlegroups.com</a></td>
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<th valign="BASELINE" align="RIGHT" nowrap="nowrap">To: </th>
<td><a class="moz-txt-link-abbreviated" href="mailto:afro-ip@googlegroups.com">afro-ip@googlegroups.com</a></td>
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<br>
<br>
<div class="gmail_quote">
<div link="blue" vlink="purple" lang="EN-ZA"><span
style="FONT-FAMILY: Arial; FONT-SIZE: 10pt">
<div>
<p class="MsoNormal"><a moz-do-not-send="true"
style="MARGIN-BOTTOM: 1em; FLOAT: left; CLEAR: left;
MARGIN-RIGHT: 1em; cssfloat: left"
href="http://3.bp.blogspot.com/-IAmJjuRcSzc/TiMUFGch5hI/AAAAAAAABTc/udelMsBOFBY/s1600/nophoto.bmp"><img
moz-do-not-send="true"
src="http://3.bp.blogspot.com/-IAmJjuRcSzc/TiMUFGch5hI/AAAAAAAABTc/udelMsBOFBY/s200/nophoto.bmp"
width="200" border="0" height="200"></a>This latest <a
moz-do-not-send="true"
href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPJHC/2011/56.html&query=mclean"
target="_blank">case</a> from the Saflii database
details the <a moz-do-not-send="true"
href="http://www.mmegi.bw/index.php?sid=7&aid=2182&dir=2010/May/Thursday6"
target="_blank">drama</a> between two South Africa
celebs. Cycling rock star <a moz-do-not-send="true"
href="http://twitter.com/#%21/AndrewMclean"
target="_blank">Andrew Mclean’s</a> company and shop <a
moz-do-not-send="true" href="http://www.cyclelab.com/"
target="_blank">Cycle Lab</a> were called upon to defend
claims by ex Miss South Africa and business personality <a
moz-do-not-send="true"
href="http://www.basetsanakumalo.com/" target="_blank">Basetsana
Kumalo</a> that her rights were abused. The rights at
stake were Basestana’s identity, image and dignity.<br>
<br>
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. <br>
<br>
Kumalo’s lawyers placed this <a moz-do-not-send="true"
href="http://en.wikipedia.org/wiki/Col_du_Tourmalet"
target="_blank">Col Du Tourmalet</a> in the path of
Cycle Lab by claiming that the publication was an inuria*
and damages on four separate grounds:<br>
<br>
1. sentimental damages based on the actio iniuriarum*; <strong><span
style="COLOR: red">Outcome : Successful </span></strong><br>
2. alternatively to 1. constitutional damages arising from
a violation of the plaintiff’s rights to dignity and
privacy; <strong><span style="COLOR: red">Not relevant
because of 1.</span></strong><br>
3. patrimonial or special damages; <strong><span
style="COLOR: red">Outcome : Not successful lack of
evidence; and</span></strong><br>
4. unjustified enrichment. <strong><span style="COLOR:
red">Abandoned</span></strong><br>
<br>
Although commented on in the judgement, claims based on
passing off and trade mark infringement were not pleaded -
<strong><span style="COLOR: red">see Afro Leo's comments
below</span></strong><span style="COLOR: red">.</span><br>
<br>
The amount of the damages award was held over for later
determination.<br>
<br>
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:<br>
<br>
<em>“..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.” </em><i><br>
<em>“In a broad sense, the plaintiff’s right to dignity
has also been infringed.” </em><br>
<br>
<em>"...her photograph in an advertisement cannot be
justified on the basis that she is a public figure or
celebrity.”</em><br>
<br>
<em>“That the defendant did not use the plaintiff’s name
in the advertisement is legally irrelevant” </em></i><br>
<em>“It is also not necessary for the attachment of
liability that the photograph depict the plaintiff in an
objectively degrading, humiliating or insulting manner.”</em><br>
<br>
<em>“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”</em><i><br>
<br>
<em>“... 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.” </em><br>
<br>
<em>“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. </em><br>
<br>
<em>“...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.”</em><br>
</i><strong></strong></p>
<p class="MsoNormal"><strong>Comments</strong><br>
<br>
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.<br>
<br>
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”.<br>
<br>
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. </p>
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