This document provides an overview of image rights and the varying approaches taken in different jurisdictions. It defines image rights as the protection of a person's images, voice, likeness, personality, and identity against falsification and commercial exploitation. Examples are given of regulatory approaches in South Africa, California, New York, English law, and Guernsey. Key differences between jurisdictions relate to whether image rights are considered a privacy issue or an independent right to identity, and the duration of any post-mortem rights. There is currently a lack of harmonization in image rights laws internationally. Best practices are suggested for responsible image usage.

1. Image Rights – a
quick overview
So much regulatory promise, so
little attention
Dr TN Mashinini
University of the Witwatersrand

2. Overview
Definition and
classification
Examples from
selected jurisdictions
Lack of harmonisation
in a world of global
citizens
Best practices and tips
for image usage

3. Image rights
• What? Protection of your
images, voice, likeness,
personality, and identity against
falsification & commercial
exploitation
• For whom? Everyone, but some
are more equal than others!
• Is it privacy? It depends… on
each jurisdiction & terminology

4. Examples of regulatory approaches
South
Africa
California New York
English
Law
Guernsey

5. Example from Africa
Grutter v Lombard (SCA) – right to
identity recognised as a separate
independent right encompassed
in human dignity
Privacy vs Identity debate
• Privacy violated due to
intrusion and unauthorised
disclosure if there is a
legitimate expectation of
privacy
• Identity violated by
falsification, commercial
exploitation – e.g Wells v Atoll
& Kumalo v Cycle Lab
• Freedom of Expression
limitations – Bool Smuts v
Herman Botha (SCA)
• South Africa

6. The right to
identity –
bird’s eye
view
Subjective independent personality right
Non-transferable, uninheritable, cannot be relinquished or
attached
Terminated by death
Infringement via iniuria
• Delictual claim under common law – must prove elements
• Type of conduct that violates identity:
• Misappropriation
• Falsification
• Commercial Exploitation
Remedies: Actio iniuriarum/ Interdict/ sometimes Actio legis
acquiliae

7. Examples
English law
• Consider Fenty v Topshop
Guernsey
• Image Rights Ordinance
• Registration
• Not tested in court
• Protected similarly to IP

8. Examples from United States of America
California
C-L tort of misappropriation
S3344 & 3344.1(a)(1) California Civil Code
• Commercial use w/o permission
• Post-mortem right for 70 years after the death
• Publishers are immune from claims relating to publications
they had no knowledge of
Keller v Electronic Arts Inc
• Illustrates when commercial use is not protected under First
Amendment right to free speech
New York
C-L privacy invasion tort
S50 & 51 New York Civil Rights Law
• Commercial use w/o permission
• Post-mortem right for 40 years after death
• Publisher should know of unlawfulness to attract
liability for damages
Haelan Laboratories v Chewing Gum
• Created confusion of separation between privacy
and publicity

9. Lack of harmonisation in a world of global
citizens
• Consider social media – memes/ deepfakes/ catfishing
• Social media user behaviour: believe what you see and hear –
disinformation age
• Identity aspects are at the centre of AI today – why not amplify image
rights protection?

10. Best practices and
tips for image
usage
• Hide your child’s face when you post pictures of them on social
media
• Reduce the frequency of posting images and videos
• Ask for permission if you want to take a picture of another person
• Be transparent about the purpose
• Written agreement with licensing and ownership clause
• Give credit where it is due
• Do not directly or indirectly create an impression of affiliation
where there is none

11. Want to know more?
PODCAST
Dr N Mashinini
Senior Lecturer
University of the Witwatersrand,
Johannesburg
Research Output on ORCiD
https://orcid.org/0000-0003-3265-4220
- Image Rights byNMashinini -
https://irbymashinini.buzzsprout.com/