The episode covers the definition of Image Rights with some examples of cases that have been decided for the protection of Image Rights.
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Host: Nomalanga Mashinini
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What are Image Rights?
Welcome to another episode of Image Rights by N Mashinini. I'm your host, Nomalanga Mashinini, and I will be sharing my knowledge and research on the legal and contemporary issues that relate to image rights.
Today's topic is, “what are image rights?”.
I remember attending a third-year intellectual property law lecture when the professor introduced image rights. It seemed odd to me at the time, he shared a case where a freelance journalist had taken a photograph of a 12-year-old girl wearing a bikini but without her permission. This image was later published as the cover of a surface magazine, and it drew a lot of backlash from the community. What struck me was the realisation that a person can control who publishes the image, despite the norm that journalists can take pictures of people without their consent every day. To me, this case highlighted the tension between the freedom of the press and the right to privacy, dignity, and most importantly, image rights. Knowing the full length of the constitutional foundations of freedom speech, I wondered why “the law” could intervene in the case of a photograph of a little girl in a bikini. Why was it so important? So, I started researching the concept of image rights.
Whenever I tell people that I'm writing a doctoral thesis on image rights, they often ask me, “What's that?”. It is unsettling to know that a number of people either do not know of image rights, or they don't know the full extent of how their image rights protect their identity.
Let's look at a definition of image rights. Image rights refer to the ability of a person to control how their photographs, speech signature, handwriting and other personality attributes are used in the public domain. So, image rights are a core feature of a person's dignity. This means that in South Africa, image rights are constitutionally protected under the right to human dignity, although we refer to the right to identity to express the concept of image rights.
South African law protects the unauthorised use of a person's identity and grants everyone image rights regardless of their public or private status. This means that no one is allowed to portray a person in a false light and no advertisement may show false endorsements using persons identities. Influencers are a perfect example of those who exploit the image rights for an income. As you know, brands target people who are very active on social media and managed to reach a large number of followers. It is the attractiveness of their social media pages and the engagements that they receive that makes them fit for product endorsements. But endorsements have not always been that simple.
For example, in 2013 in South Africa, Basetsanna Kumalo was a victim of image rights infringement. She saw a photograph of herself in an advertisement, and sued the cycling company for the violation of her identity as well as privacy. She actually won that case, because she managed to show that her image rights were used without her permission for the benefit of the defendant company. No one is immune to such an experience. The question is, when it happens to you, what remedies are available to you?
In the South African context, one would have to follow two main options. It's either you would sue for damages, or apply for an interdict to stop the infringement. The circumstances of your case will obviously determine which remedy is best for you to pursue. This is something that a legal adviser or practitioner would be best suited to assist you to determine which one applies in your case. It's important to know that not every image rights violation will yield the remedy though.
A number of democratic states strongly guard the right to freedom of expression, and our country, South Africa is one such example. It has happened to Minister of Police Bheki Cele, that he once tried to claim for the infringement of his image rights. At that time, he was still working for the Executive Council of KwaZulu Natal, running a gun violence campaign to encourage the youth to seize arms. A journalist had published a caricature of Bheki Cele, which depicted him as an officer of the Wild West. Cele, however, was not impressed with this publication, and argued that the caricature was casting him in a false light. The court was not having it, though. It was actually found that as a public figure, they had to endure the criticism from the media, because of the media's right to freedom of expression. Unlike the Kumalo case, Cele’s image was actually not used for any commercial gain, but it was rather meant for public comment for the public’s interest.
So, my research reveals that advertising cases relating to false endorsements usually constitute infringement of image rights, unlike publications that are meant as satire, or parody, or public comment due to the right to freedom of expression. So now I finally understand why the court had ruled in the favour of the 12-year-old girl that I read about during my third year in university! The journalist had intruded on her right to choose how her image may be used in public. And not only that, but the magazine company got to gain financially from the sale of the magazine at the expense of the victim.
I've also found that image rights as a legal concept are riddled with confusion and nuances across various countries. The outcome of each case is often unpredictable. I've come to realise that this state of uncertainty is increasingly highlighted by the challenges that we face online on social media with memes, artificial intelligence, deepfakes, you name it. Consequently, in each episode, I'm going to look at specific cases and unravel the findings of the courts to provide an understanding of how image rights are protected. South African law will form the basis of the first season of this podcast. But after looking at South Africa, I will then move on to discuss the United States of America and English rules.
Tune in for the next episode, where I will be unpacking the Basetsanna Kumalo judgment in the context of advertisers and influencers.
If you have any questions based on this episode, you can send them to firstname.lastname@example.org or follow @irbyNMashinini on Twitter, Facebook, Instagram and LinkedIn.
I'm your host Nomalanga Mashinini.
This podcast series is based on research funded by the National Research Foundation of South Africa, grant 121887. The opinions and views expressed in the series do not reflect the views and opinions of the National Research Foundation, its management or governance structures.
Until next time, control your image rights!
Keywords: image rights, identity, photography, South Africa, freedom of speech, endorsements, caricature.