Abstract
Our modern society has become transfixed with celebrity. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against the unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty). The judgment in Wells has redefined the right to identity and provided some clarity on what the infringement of that right would amount to. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed upon if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of the individual concerned, if the use amounts to the commercial exploitation of the individual, if it cannot be reconciled with generally accepted norms of decency, or if it violates the privacy of that person.Keywords: Identity; image rights; publicity rights; personality rights; delict; tort
Highlights
Our modern society has become transfixed with celebrity
Of particular interest is Davis J's apparent conclusion that appropriation of a person's image constitutes an unjustifiable invasion of the personality rights of the individual, where a photograph is published for the benefit of a magazine sold to make profit
It invites the question if all magazines and newspapers are not sold for profit and if every photograph published in newspapers and magazines is not published "with the clear purpose of including it to increase the attraction of a commercial publication"
Summary
Our modern society has become transfixed with celebrity. The mass media lap up every sordid little snippet of news about actors, music stars, sport stars, politicians, royals, socialites and other famous people and sell it to consumers who eagerly await the celebrity scandal. Business people and marketers endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against unlawful use of his or her image? The girl was 12 years old at the time the photograph was presumably taken It appeared in a section of the magazine entitled "dishing up the photo feast" and, as it was published, was stamped bearing the word "filth" as well as a caption at the foot of the photograph reading "all-natural Eastern Cape honey". The girl was distressed to learn that the picture had been put up as a pinup poster in such public places as a craft shop at a local casino and a local boys' school
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