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When can a photograph of a celebrity be used in an advertisement? A celebrity walks into a cycle shop and tries on some gear. An opportunistic shop owner takes her photograph and uses the image to promote women’s cycling in South Africa. Is it a case of good fortune or a recipe for a court battle? Given that this is a legal article, you may have guessed that it was the latter and a court case ensued between Basetsana Kumalo and Cycle Lab (Pty) Limited, leading to a decision being handed down by the South Gauteng High Court in June of this year. Kumalo, an ex Miss South Africa and successful model, television presenter, magazine editor and businesswoman visited a cycling shop, the Cycle Lab, in February 2007. While trying on cycling helmets, a man approached Kumalo and took her photograph under the instruction of Andrew McLean, a director of the Cycle Lab, who had recognised Kumalo as a nationwide celebrity. The photograph was incorporated in an advertisement for its store in a 1 Time Airline’s in-flight magazine. Due to advertising budgetary constraints, McLean had initially intended his wife to model for the advertisement, but saw an opportunity to use Kumalo’s fortunate visit to his store to promote his business through the angle of ‘healthy South African women’. McLean did not use Kumalo’s name in the advertisement. When the advertisement was brought to Kumalo’s attention, she immediately objected to it, claiming that she did not consent to the taking of the photograph or the use of her image for advertising purposes, that the advertisement sought to exploit her image for commercial purposes without her knowledge or consent, and that the advertisement published a low-quality photograph of her in a poorly designed advertisement. Kumalo felt that she had been abused and her privacy invaded, and was embarrassed as she feared that her friends, professional colleagues and peers would assume that she had consented to the publication of the photograph, thereby lowering her professional standards and standing. McLean argued that as Kumalo had not objected to her photograph being taken at the time, it amounted to consent. On this point, the Court held that by not objecting after the photograph had been taken, Kumalo may have implicitly agreed to the taking of the photograph, but such agreement did not extend to the use of the photograph for advertising purposes. The Court stated that the overwhelming probabilities are that McLean did not seek Kumalo’s consent to utilise the photograph for advertising purposes as he knew that it was extremely unlikely that she would agree to it. The Court found that Kumalo’s image had been used in a misleading way, in that it generated the false impression that she had endorsed the Cycle Lab’s lady-specific cycling products and its campaign to promote cycling among women. The Court held that the appropriation and misuse of Kumalo’s image in this manner constituted a violation of her right to identity, was wrongful and would be considered by persons of ordinary and reasonable sensibilities to constitute an iniuria – an infringement of a person’s personality rights and interests. The use of the image also violated Kumalo’s privacy as her image was publically exposed contrary to her determination and will. The fact that Kumalo is a public figure or celebrity means that she does have to accept that she may attract more attention than non-celebrities when appearing in public. However, this does not negate the fact that Kumalo still retains the right to be protected against infringement of her right to privacy and identity by the non-consensual publication, for advertising purposes, of a photograph taken while shopping. The quantification of Kumalo’s damages was postponed for later determination. The fact that a celebrity may have smiled for a photograph or frequently visits a particular establishment does not entitle his or her image or name to be used in an advertisement, without the celebrity’s express consent. Publication Name: Personality Rights Date: May, 2013

Andrew Papadopoulos

Trade Mark Attorney
Email andrewp@kisch-ip.com
Tel +27 11 324 3012

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