Protection of image rights in South Africa

By Jan-Hendrik Gous on 8 February 2020

A recent judgement in Italy underlined the right of a person to protect his or her image rights. Image rights refer to the right to use someone's name, reputation, performance or image for commercial purposes. Although the protection of image rights has not extensively been considered by South African courts, there is an existing framework in terms of which these rights can be protected and enforced.

Maradona successful with lawsuit 

Former Argentine football player Diego Maradona recently sued Italian fashion house Dolce & Gabbana for the unauthorised use of his name. The suit related to the use by Dolce & Gabbana of Maradona's name on a football jersey worn by a model during a fashion show in Milan. Maradona claimed that the defendant was exploiting his name and taking unfair advantage of his reputation by misleading the public into believing that there was a commercial relationship between himself and the defendant. 

The Milan Court of First Instance found in favour of Maradona, determining that if a sign or name is well-known, it cannot freely be used by a third-party without the permission of the rightsholder. The court underlined a person's right to prevent third parties from freeriding on his or her reputation. Damages of €70 000 were accordingly awarded to Maradona. 

Protection of image rights in South Africa

Like in most other countries, there is no specific protection of image rights in South Africa. Such rights are generally protected in terms of the common law protection of personality rights. In terms of the law of delict, the actio iniuriarum can be instituted to protect a person's dignitas, which is a collective term referring to all personality rights, including privacy, dignity and identity. 

Our courts have held that a person's identity is infringed should such person's image or identity be falsified in some way. In the case of Kumalo v Cycle Lab (Pty) Ltd [2011], the South Gauteng High Court held that a recognised form of falsification occurs where a person's image is used for advertising purposes without his or her permission, creating the false impression that such person has consented to such conduct or supports the advertised product.  

Passing off and trade-mark infringement 

Image rights can also be enforced by way of the common law action of passing off, or by instituting trade-mark infringement proceedings. Passing off refers to the false representation by one person that its business is that of another, or that its business is associated with the business of another. It is furthermore possible to register a person's name, image or signature as a trade-mark in terms of the Trade Marks Act, No. 194 of 1993. 

Personality rights only apply during the lifetime of a person. A person's image rights can however posthumously be enforced by way of passing off or trade-mark infringement proceedings.

In conclusion 

Image rights are globally being afforded increased protection. There are various ways in terms of which these rights can be protected, either during the lifetime of the person concerned or after his or her death. Caution should accordingly be had when using the name or image of another person in the marketing or promotion of a business or enterprise.

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Please note that the legal topics informally discussed here are general discussions of certain aspects and therefore certainly not intended as legal advice.  We look forward to discussing your particular case with you.