By Adam Wakefield
In May this year, Jose Mourinho was set to be named as the next manager of Manchester United, but there was a snag before he could be appointed: image rights. It turned out Chelsea, Mourinho’s previous employer, still owned his name as a trademark and could demand a hefty payment from Manchester United before any deal was done.
Manchester United eventually got their man, but the episode was a reminder of the importance of image rights and their commercial implications. What exactly are they?
Pam Wills, managing director of
Gallo Images, says image rights refer to the license provided to protect a photographer’s work for whom they represent.
“It gives the user the rights and peace-of-mind to use the work, much like the music industry,” Wills says.
Mandy Capela, an entertainment lawyer based in London, notes that image rights are more commonly known as personality rights, an encompassing term including right to dignity and right to privacy, among other rights. Capela refers to a person’s image as being their “signature”, which they can protect from unauthorised usage.
Capela says image rights are not a form of copyright but rather can be likened to a trademark, and the protection of such through the ownership of a mark representing a brand. For celebrities, who in a way are a brand themselves, the licensing of image rights is a lucrative business.
“Celebrities will enter into endorsement contracts which state what they can and cannot allow their image to be used for by other companies,” Capela says.
As Wills contends, the license Gallo Images issues to clients gives them the right to use an image in a specific way and through a medium that is in accordance with the particular license issued.
A picture is worth 1000 words … literally
Image rights are recognised as having an inherent value, but how is this value calculated or arrived at? Wills says at Gallo Images, the fee of an image depends on a number of factors.
“There are formulas that we use based on how the image will be used in the media. There is above, below and through the line. The size and position of its use is also taken into account, such as a billboard at busy intersection, or inside a magazine’s editorial pages,” Wills says.
“The duration and number of countries the image will be used in is also a key factor and ranges from a day to months or years.”
To make images more accessible in what Wills refers to as “our hyper-visual world”, there are a number of collections licensed to give quick and affordable access to interested parties, as well as peace-of-mind to the rights holder.
Keeping track of images
While it may seem like digital would make image tracking and their illegal use ever more difficult, Wills says it has, in fact, made Gallo’s task that much easier.
“There are some very smart programs that check all images on the internet against the uses. At Gallo Images, we use a program called PicScout by Getty Images,” she says.
Every day Gallo receive screen shots of websites who used their images illegally, along with a full company history and ready-to-go summonses.
The law
Image or personality rights exist to protect the rights holder, so what does South African law actually say?
Capela says personality rights are not protected under copyright law.
“In South Africa, there is no specific protection of personality rights, like in the Netherlands for example. Personality rights are recognised under common law. As mentioned, there are various types of personality rights and these can be protected in various ways,” she explains.
“At a basic level, should someone violate your personality rights, then you may bring a claim in delict - civil law.” To do so, wrongfulness would need to be proven on the part of the infringing person or company.
Whether the infringement is intentional is moot, as it can be done so negligently. What matters is the harm to the image rights holder needs to be significant for monetary compensation to be awarded. Capela says the courts generally do not take this requirement lightly.
Whichever way it is looked at, image rights are a serious business in our hyper-visual world, and whenever using an image, it should be noted whether such an image, or person for that matter, is rights-free or not. Just ask Jose Mourinho.
What are your thoughts on image rights? Let us know in the comments below.