Gospel music icon Dr. Rebecca Malope has expressed outrage after discovering that her image was used without permission to promote Procter & Gamble (P&G) laundry detergent brand – Ariel washing powder. Malope took to social media to voice her frustration, and condemned the misuse of her image and reputation, which mislead consumers into believing she was still affiliated with the brand. Fans and fellow celebrities rallied behind her, criticising the brand for exploiting her image without consent.[1]
The musician’s legal team has reportedly taken action against P&G for the unauthorised use of her image. News outlets reported that Malope’s endorsement deal with Ariel washing powder was valid from 2016 to 2022. Subsequent to the expiration of the endorsement deal, the brand continued to use her image on packaging, leading to the dispute and eventual settlement. According to City Press, Malope demanded R1 million from P&G for using her image beyond the contract period – the parties have allegedly settled the matter out of court.[2] P&G has not publicly commented on the matter.
In South Africa, a celebrity’s image is not explicitly recognised as intellectual property (IP) in the same way as trade marks or copyrights. However, protection for a celebrity’s image can be sought under common law through the concept of personality rights, which are related to privacy and the right to identity. Personality rights are legally protected aspects of an individual’s identity and well-being, encompassing factors such as physical integrity, reputation, dignity, and privacy. These rights are safeguarded under the common law of delict, specifically through the actio iniuriarum, and also find protection within the constitutional Bill of Rights.
In a similar case; Kumalo v Cycle Lab (Pty) Ltd which centred around the misuse of former Miss South Africa, Basetsana Kumalo’s image and likeness by Cycle Lab, to endorse its goods without her permission, Boruchowitz, J stated that “…Use of her image in this manner constitutes a violation of her right to identity. The appropriation and misuse of the plaintiff’s image is wrongful and would be considered by persons of ordinary and reasonable sensibilities to constitute an iniuria which is deserving of legal protection.” [3]
A publication by (Mangope & Alberts, 2022) stated that in South Africa, “the unauthorised use of a person’s photograph in an advertisement was first considered as a ground to institute the actio iniuriarum in the case of O’Keefe v Argus Printing & Publishing Co Ltd. This case was the first to recognise the right of identity as a protectable interest that is violated where advertising involves the unauthorised use of a person’s image for commercial purposes. The Supreme Court of Appeal in Gruffer v Lombard recognised that a person’s right to identity is infringed when a part of that identity is used without consent and for commercial exploitation.” [4]
These cases highlight the ongoing issue of celebrities’ likenesses being used without permission for commercial gain. Unauthorised endorsements can damage a public figure’s brand and credibility. This matter serves as a reminder of the importance of protecting one’s image and IP rights, through mechanisms such as IP tracking, and publicity rights monitoring.
Author: Ntombi Nondaba | Marketing Officer
Approved by: Nicolette Biggar | Senior Consultant Attorney
References:
- The South African
- City Press
- Julia Basetsana Kumalo v Cycle Lab (Pty) Ltd (31871/2008) [2011] ZAGPJHC 56 (17 June 2011)
- Mangope, K., & Alberts, W. (2022). “Something old, something new” – aspects of personality rights in the United States and South Africa. Obiter, vol.43 n.3
