Academic journal article The International Sports Law Journal

Image Rights in South Africa

Academic journal article The International Sports Law Journal

Image Rights in South Africa

Article excerpt

1. Introduction

The second half of the Twentieth Century was marked by an unprecedented growth in the entertainment industry--not only as far as theatre, film, music and fashion was concerned, but also sport. There was a sudden awareness that film stars, musicians, models and sport stars were often worth more, far removed from the silver screen, radio, catwalk or playing field, than they would ever earn on it.

One of the consequences was that the outward image and physical attributes of the individual suddenly became commodities. The advertising world took notice of the popularity enjoyed by the stars and realised the value of associating merchandise or trade marks with superstars. On the one hand, this lead to a whole new source of income for the superstars themselves and hopefully greater profit for the enterprises that associate their products with the stars. But on the other hand, it lead to difficulties when the attributes of a person was apparently used without consent.

And it is precisely this unauthorised usage which poses new questions to the law: Should the law protect the individual against unlawful use of his or her image? If so, to what extent should such protection be granted?

At first glance the answers to these questions seem rather simple. But closer analysis reveals a controversy which makes the whole matter quite complex. Firstly, we have to determine to what extent the individual should be protected against the unlawful use of his or her image. Exactly which attributes of the individual should enjoy protection? Is it only the hereditary traits, such as physical features and voice? Our should other acquired attributes, such as hand writing, autograph, skills, qualifications, experiences or even habits and customs, opinions and points of view also be protected? (1) And what about apparent attributes, such as when a fictitious persona is created? To what extent should they be protected? (2)

Secondly, if protection should indeed be granted, what is the legal nature of such protection? Does the individual have any subjective right which is worthy of protection? If so, what is the nature and extent of such right?

And against whom do these rights apply? After all, it is well known that different people may have the same name or that people may naturally by coincidence or artifically through design look or sound alike. Does protection of a particular pesons's right to identity mean that the rights of all other persons with similar attributes will be affected thereby? And how long should this protection last? As long as the individual is alive? But stars such as Elvis Presley, Marilyn Monroe and James Dean still earn millions of dollars even decades after their apparent demise. Should the rights then devolve on the estate of the individual? And if it can devolve, can it also be traded during the lifetime of the individual?

Thirdly, protection of the individual's right to identity must be weighed against the fundamental right to freedom of expression. Can an artist be sued merely because a subject in a portrait purposefully or coincidentally looks like a particular individual? Can a newspaper or magazine be sued because a photo of an individual appears next to a news report which involves that individual? And where does that leave the cartoonist who pokes fun at famous people?

These questions require a fundamental analysis of the principles involved, firstly to determine whether there is indeed a right to identity in the South African law and, secondly, to define the nature and extent of such a right.

2. Comparative analysis

From an analysis of various legal systems, it is apparent that there are mainly two approaches to protection of the individual against unauthorised use of his or her image. This distinction also generally coincides with the distinction between continental systems where the law is largely codified and systems that are generally based on common law. …

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