News and Views
JOHN CENA REFUSES TO CRAMP SHO MADJOZI’S CREATIVE STYLE
In August 2019, Maya Wegerif, better known as Sho Madjozi, made a name for herself when she released her “John Cena” track on which she mainly raps in Swahili. However, she clearly mentions John Cena’s name in the English chorus. After its release, Madjozi was harshly accused of making a mockery of Cena and his work, following which the WWE asked him to give “a statement or a quote”, but he refused. Rather, he embraced the publicity around Madjozi’s song and stated the following in an interview with Kelly Clarkson: “She’s mentioning my name and referencing what I do for a profession, and I could easily be like ‘yo that’s IP copyrighting infringement’ or I could say ‘she’s a South African artist and my contribution to the WWE has sparked creative inspiration to someone’.”
In a case such as this, besides the obvious copyright issue mentioned by Cena, another right to consider is the ‘right of publicity’. The United States recognises this right, especially when it comes to the use or appropriation of a celebrity’s image or name. The right of publicity can essentially be defined as a right to control and regulate the commercial exploitation of a person’s name, image or persona.
This right falls under the umbrella of intellectual property rights and can therefore be commercially exploited as such. In South Africa, section 20 the Copyright Act 98 of 1978, makes provision for moral rights which prevents the distortion, mutilation or other modification of the work where such action is or would be prejudicial to the honour or reputation of the author.
In the above scenario, it is evident that the publicity benefit may well have outweighed the copyright infringement. However, it could be beneficial for Cena to regulate the use of his name in terms of an agreement with Madjozi. This form of agreement is more commonly referred to as an ‘influencer agreement’ which is essentially a licensing agreement setting out the terms and conditions for the use of a person’s copyright, name, likeness and trade mark rights.
An agreement of this nature essentially controls and regulates how a celebrity’s image and likeness may be represented in the media and must be very specific in that it should communicate exactly what can and cannot be done in using the celebrity’s name and likeness. Everything from social media posts to interviews can be regulated in terms of this agreement.
Important clauses to consider in an influencer agreement are:
- the public image the person must maintain while in collaboration with the celebrity,
- under what circumstances the contract can be cancelled,
- confidentiality and exclusivity clauses based on breaches such as non-performance (or even poor performance/ reputational damage), and
- protection of any sensitive information shared between the parties together with the ability to collaborate with any other competing party can also be protected in this agreement.
Sho Madjozi has fortunately benefitted from John Cena’s reluctance to take measures in stopping or criticising her. However, an influencer agreement might be an appropriate solution for other celebrities who want to prevent upcoming artists from following in Madjozi’s footsteps.
For more information on drafting influencer agreements, please contact our commercial department personnel Anola Naidoo at AnolaN@kisch-ip.com or Sonica Wilken at SonicaW@kisch-ip.com.
Sonica Wilken
Associate
Attorney
Trade Mark Prosecution Department
Email sonicaw@kisch-ip.com
Tel +27 11 324 3133
Anola Naidoo
Senior Associate
Commercial Department
Email anolan@kisch-ip.com
Tel +27 11 324 3060
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