Sport has increasingly become commercialised in recent years. One of the consequences stemming from these developments is that the physical image and physical attributes of individuals in the sport and entertainment industries have suddenly become commodities.
The advertising world has taken note of the popularity these stars enjoy and realises the value of associating their brand, merchandise and trademarks with these sport stars. On the other hand when these “stars” realise the value of commercialising their own image and creating their own brand, these sport stars actually exploit their own fame by entering into major endorsement and advertising deals.
These deals often enable sport stars, both men and woman, to generate a bigger income from their promotional activities than what they would have earned purely on the sports field. Profits are increased for enterprises that associate themselves with these sports stars and this appears to be a win-win situation for everyone involved. A concern of this profit driven development is that it might lead to exploitation when the attributes of a person is used without his or her knowledge or consent.
Such unauthorised use poses interesting legal questions such as whether the law should protect the individual against the unlawful use of his or her image, and if so, to what extent the law should offer such protection. Although the answers to these questions seem simple, a closer analysis reveals a controversy which makes the matter rather complex.
An image right can be described as the ability to decide when, how and by whom one’s physical, recognisable features and attributes such as image, voice, name handwriting and autograph, may be captured, reproduced or published. Image rights in sport leads to commercial relationships. For example: tennis and golf players are independent self-employed sport persons who do not depend on an employer and only sign commercial contracts. In these cases the clauses of the individual contracts signed by these sport persons, and the rules of the competition in which they will be participating, will prevail.
The use of images during and for sporting events, for example during mega sporting events in which national teams participate, there is no employment relationship between the sporting federation and the players chosen for the national side. The link between the players and their club is obviously not suspended while they are playing for the national team, with the exception of the management and control over the activities. One must further consider the individual endorsement deals of each player. Disputes usually arise when the participation of players in different sporting events (for example where a soccer player plays for a club as well as the national team) overlap, including the use of image rights by the various organisations and sponsors.
When disputes regarding the use of image rights arise, the exclusivity of the licensing of such image rights will then be considered from a contractual perspective as a preventative measure (to be discussed in Part 2 of our July 2015 issue).
In the case of Wells v Atoll Media (Pty) Ltd the court dealt with the various questions as to what extent protection of image rights should be granted. The Plaintiff, and legal guardian of her minor daughter brought an application against the Defendant, the owner of a surfing magazine called ZigZag. The claim for damages arose out of the publication of an offending photograph of the 12 year old minor girl being published in the magazine and on national television.
It was presumed that the photograph was taken while the Plaintiff and her family were vacationing in Cape St Francis and subsequently published in the April 2006 edition of the magazine. The photograph which appeared in the magazine was captioned as “All natural Eastern Cape honey”. The photograph was also screened as part of an advertisement campaign on national television.
Although one could not see the girls face as the photograph was taken from behind, many people apparently recognised the girl by the angle at which it was taken, as well as by her hair. The consequence of the publication of this photograph, without consent, was that disapproving remarks were made about the girl in mobile text messages, as well as electronic chat-rooms and communities.
The court had to determine whether the girl could be recognised in the photograph by reasonable readers of the magazine, whether the language used in conjunction with the photograph was defamatory and whether there the girl’s dignity and right to privacy were infringed. The court found that the girl could be identified, that the publication of the photograph and accompanying phrases were in fact defamatory and that the publication of the photo concerned was not reasonable. Further Davis J found that the publication of the photograph without consent, and with the clear purpose of including it to increase commercial publication, was not in the best interest of the minor and not consistent with Section 28(2) of the Constitution, and therefore constituted failure of the standard of a reasonable publisher.
When one analyses the various legal systems, it is clear that there are mainly two approaches to protection of the individual against unauthorised use of his or her image. The distinction also generally accords with the distinction between continental systems where the law is largely codified and the systems based on common law principles. In some legal systems these matters are regulated by statute, while there are attempts in other legal systems to afford protection within the confines of the common law measures of mainly the law of tort or delict.
The available protection in South Africa currently affords protection in certain circumstances where the image and identity of a well-known person may be acknowledged and protected as a trade mark, and there are a number of South African sport personalities who have sought protection in terms of the Trade Marks Act. The Trade Marks Act is used as a protectionist piece for the image and personality rights of well-known sport persons as it gives the individual a monopolistic control over his or her registered image trademark. This will thus prevent third parties from making unauthorised use of their registered image.
The question is whether this approach in the South African law provides sufficient protection in this regard. Although several uncertainties in the unauthorised use of the name or image of a famous person, which includes a famous sports personality, exists in South African law, the South African Supreme Court of Appeal in Grütter v Lombard 2007 4 SA 89 recognised an image as a trait of personality which demands protection. This judgement was also followed by the Western Cape High Court in the matter of Wells v Atoll Media (Pty) Ltd.
Despite the South African legal framework’s attempt to protect and manage the image and personality rights of its famous sport persons, it is still regarded that the South African Law does not offer sufficient protection. In the growing commerce of modern society, the reality is that the unauthorised exploitation of image rights by advertisers and vendors may cause patrimonial damages, particularly in the form of trade mark dilution which decreases the value of the sportspersons image. There also seems to be a significant loss in royalties and licence fees due to the unauthorised exploitation of a famous sport person’s image.
In conclusion: modern legal systems do recognise the concept of image rights in one form or another. The protection differs significantly from one jurisdiction to the next.
Despite the fact that other jurisdictions have made substantial progress in recognising and creating laws to protect the image rights of sport persons and other famous individuals, South Africa does not yet recognise an independent image right.
We hope that judicial acceptance of such rights will soon find favour in South Africa and that the laws will eventually align with the commercial realities of the modernised world.