Commercialisation of Sport: with a specific focus on images and personality rights of sportspersons (Part 2)

As previously mentioned in Part 1 of this article South African Law recognises that every person has a number of personality rights and that protection for the infringement upon these rights is available in the common law in the form of the right to privacy and the law of defamation. In recent years it has become a custom to commercialise the image or name of a sportsperson. Major companies and brands who offer sponsorships have realised the immense value in commercialising the image of a sportsperson and using their image to enhance the image of their brand and to promote sales of their products.

Image Rights of Sports Persons
The capacity that an individual has to exclusively regulate the profitmaking use of his name is defined in the term “image rights”. This is the physical or graphic image, character, identity, personality; nick name and or signature used in and on advertisements such as posters, commercials, billboards, prints to create brand awareness and promote sales of the products endorsed by these sportspersons. The reason that these rights have such immense value is because they can be licenced to a third party for commercial exploitation.

In South African law there is no statutory protection afforded to the ‘right of publicity’ therefore protection is found in the law of delict in the form of patrimonial damages and non-patrimonial damages suffered, as recognised by the common law, for example when there has been an interference with the recognised personality interests even though the Plaintiff’s economical position has not been affected. It is general practise in South African law that such interference in the personality rights of an individual, in this instance for example John Doe (herein after referred to as the Plaintiff), is actionable as an iniuria.

In the matter between Kumalo v Cycle Lab (Pty) iniuria is defined as the wrongful and intentional infringement of an interest of personality. Liability is based on a wrongful act intentionally done against another, which infringes his dignity and his person or his reputation. The essentials of iniuria include the wrongful act; the wrongful act must be intentional and it must violate one or other of those real rights related to personality, which every free man is entitled to enjoy. Both fama and dignitas enjoy protection in South Africa.

The unlawful infringement of the ‘good name’ is protected by way of the law of defamation where the unlawful, intentional publication of words or conduct of a person which will affect the person’s good name and reputation occur. The definition of Dignitas has a wider application which includes the whole of the legally protected personality apart from only the corpus and the fama of the sportsperson. The Dignitas is thus protected by way of the action iniuriarum therefore it incorporates a collection of interests relating to the personality of the sportsperson. It is clear that the law in South Africa provides protection of personality rights that sportspersons will usually enjoy for an alleged infringement of their personality rights due to the unauthorised use and commercial exploitation of the individual’s image rights such as that of the Plaintiff.

As there is no specific statutory protection of a sports person’s image in South Africa, the unauthorised use of the name or image of a sports personality will enable him to bring an action for invasion of privacy and it could possibly give rise to an action for breach of a trademark or copyright. Many of the rights associated with the commercialisation of sport are found in Intellectual Property law. Copyright is a creature of statute in South Africa, and all copyright is regulated by the Copyright Act, according to the Act copyright subsists automatically and no formal procedures are required for registration. Further in order to qualify for copyright protection, it must be mentioned in the Act as the Act recognises certain categories or subjects of copyright. The law regarding patents is similar to that of the law of Copyright in that it is also a creature of statute and regulated by the Patents Act.

By definition a trade mark in the new Act permits signs, which are capable of being characterised graphically and which are able to differentiate between the goods and services of one enterprise from another, can be registered as a trade mark. The protection afforded to a trade mark is found in the registration in respect of the individual.

Trade mark law is a useful source of legislation in terms of image and personality rights for sportspersons as it gives the athlete a proprietary control over his registered image or personality trade mark for a certain period of time. Preventing others from registering or even attempting to register or use a similar trademark. In South Africa an action for breach of trade mark will only succeed if that trade mark has been registered; and the registration can only be granted if the creators of the trade mark can prove that they have the intention to use the mark for a particular purpose.

Case Study: John Doe
The cause of action arose when John Doe, the Plaintiff, a striker for the national soccer team the “Golden Eagles” became aware of the fact that Ranger Digital Entertainment Inc, a Japanese video game producer, used his image or likeness in their video game without the Plaintiff’s consent or Knowledge. Thus the Defendant (Ranger Digital Entertainment Inc) by way of commercial exploitation and misappropriation of the Plaintiff’s image has caused damage and financial loss to the Plaintiff in that the Plaintiff was not approached or aware of his image being used for the economic gain of the Defendant. In other words the Defendant used the Plaintiff’s image and likeness thus the Plaintiff may have common law protection in the form of “passing off”.

The question which arises is how do all the pieces of the puzzle fit together in South African law, can protection be found in the common law or does our law offer statutory protection? I leave this thought with you to ponder on and digest the possibilities of the creation of a statute that will regulate this position in our law. In Part 3 of this article I will discuss the available protection, the reasons why statutory protection is necessary as well as the foreign term “Passing Off”.

Samantha Wonfor