This weekend's post on Afro-IP is worthy of comment on this blog because it involves a case where damages were claimed based on the misuse of a photograph containing the image of a former Miss South Africa in advertising. The facts of the case are set out in the first few paragraphs of this post.
RSA, like most former colonies, has a hybrid legal system with influences from a number of different past masters. In this case, damages (sentimental and patrimonial) were claimed for infringement of common law personality rights and constitutional rights to privacy. Although not claimed in the pleadings, there was also the possibility of damages being claimed under passing off and, in my opinion, trade mark infringement (notwithstanding the limitations of trade marks when protecting image rights).
The Judge in the case went into some detail analyzing the jurisprudence, both locally and abroad, from authors both live and centuries dead. He upheld the claim for sentimental damages (the amount not decided, though unlikely to be very high). In doing so, he re-affirmed a principle that personality rights are inextricably linked to the person and cannot be transferred. Incidentally, this month's World Trademark Review contains thought provoking piece by Bob Cumbow on what happens to personality rights when the person dies - in many territories, they too expire.
I am left with a renewed urge to persuade those with valuable image rights to try to use conventional IP rights such as trade marks (name, signature, effigy) and, where possible, copyrights to protect their image together with a licensing and enforcement program that controls and educates about the use of their image. Unlike personality rights, IP rights can be transferred, infringements can be easier to prove (for example, there is no need to show 'intent' under trade mark infringement) and the financial minded may better understand their value on the balance sheet. Again, I say this very much aware of the limitations in using trade marks to protect image rights.
- Posted by Darren
