A well-known retailer, TopShop, sold t-shirts featuring an image of the famous popstar Rihanna without her consent.
Rihanna could show that she had established a goodwill and reputation in the business in such garments and it was likely that customers in the market for such garments would believe that she had authorised the placing of her image on the shirts as misrepresented by the retailer. This would cause damage to her goodwill in the business concerned and constituted a passing off entitling her to recover damages. In other words, the retailer had to compensate her for falsely associating its goods with her business in such goods, for which she would otherwise have been paid a royalty.
Birss J however recorded that: "Whatever may be the position elsewhere in the world, and how ever much various celebrities may wish there were, there is today in England no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image (Douglas v Hello [2007] UKHL 21)."
In South Africa it is still to be crisply decided whether the attractive force of fame attaching to a celebrity yields a right the exercise of which would include the following entitlements by means of which a celebrity could generate income and so increase the value of his or her monetary estate - obtaining a sponsorship, which is an arrangement whereby the exclusive use of the persona aspects of the celebrity attractive to consumers are applied by a sponsor to promote its products or services in return for payment of monetary sums to the celebrity; merchandising, whereby attractive persona aspects of the celebrity are associated with goods or services sourced from the merchandising vendor to attract custom thereto in return for monetary payment; endorsement of the quality or nature of a product or service by indicating that it meets with the approval of the celebrity either directly or by association in return for a monetary payment.
To be of any value however, the celebrity concerned must have the exclusive right to utilise his or her fame as an attractive force to generate income by the means aforesaid or by other available means and to have a legal remedy to rely on to gainsay the misappropriation of the entitlements by an unauthorised third party.
In the South African law there is no apparent or cogent reason to deny a remedy for patrimonial loss of the kind to which celebrities are vulnerable merely for a want of the identification and enforcement of a specific free-standing right which protects a celebrities patrimonial interests derived from his or her marketable fame heretofore by the Courts.
Insofar as a label is to be attached to any such right, a "personal intangible property right" describes it aptly. Neethling labels it similarly as a "personal immaterial property right". Mostert identifies a "right to the advertising image".
The English law relating to wrongful acts (torts) recognises a range of specific and defined torts (amongst which passing off features) which can be redressed provided the specific requirements for the particular tort are present in a given case.
The South African law concerning unlawful wrongs (delicts) is more flexible. Instead of a closed list of specific delicts it provides two actions originating in Roman law by means of which an injurious wrong can be redressed, namely, the actio legis Aquiliae when patrimonial loss is suffered, and the actio iniuriarum which redresses impingements upon the body or personality aspects of the injured person.
Thus the nature of the injury determines the remedy.
The actions are not alternatives and can thus be available cumulatively. In other words, if the harm is both patrimonial and hurtful to the personality, the harmed celebrity can claim damages under both actions albeit damages of a different kind. In the first instance the object of the right which is infringed is the estate or patrimony of the celebrity and in the latter instance, aspects of his or her personality.
The distinction between the nature of the injury and compensation which is claimable under the two actions is crucial. An injury to patrimony is redressed by payment of a quantifiable sum of money assessed with reference to proven financial harm which has been suffered as a result of the unlawful act. An injury to the persona involves a non-quantifiable sum to compensate and bring solace for hurt to aspects to the person or psyche of the individual.
To seek compensation for lost income resulting from the misappropriation of the fame of a celebrity as a derivative of the actio iniuriarum is to hitch it to the wrong action.
As the names of the available actions indicate, both originated in Roman law. The Aquilian action provided a sanction against unlawful acts against property. Sanction against unlawful acts bringing about bodily injury or harm to aspects of the personality, identified by the Romans as corpus fama and digritas, was provided by the actio iniuriarum. In both instances compensation for the wrong could be enforced.
Van den Heever records that the actio legis Aquiliae was further developed in Roman-Dutch law in a manner which must surely prevail also in modern times: "As a natural corollary to the rule that patrimonial loss was recovered, not damage in respect of lesion to a corporeal asset in the estate, the Roman requisite that there be damage to a corporeal asset - if only as a peg on which to hang the action - fell away. The action lies, therefore - assuming the other requisites to be satisfied - in respect of every kind of patrimonial loss suffered by the plaintiff."
The requirements to which van den Heever refers are, in the case of the Aquilian action, that the act complained of had to be regarded unlawful according to the standards of the community, be caused intentionally or negligently and was causally connected to patrimonial loss on the part of the claimant. This differed from the actio iniuriarum insofar as in this instance the injury was directed at hurt to personal aspects of the person of the claimant and had to be caused intentionally.
This still being the case there appears to be no discernible reason for excluding the recovery of patrimonial loss by or injury to the persona of a celebrity if the requirements for the actions afforded by the South African common law are met in a given instance.
