- The High Court confirmed that copyright for the photograph belonged to Pixel Kollective, even though the image featured Ntando Duma Mthombeni.
- The court found that using the image in a commercial campaign without permission amounted to infringement.
- Damages of R27,644 were awarded after the court dismissed exaggerated claims and set a reasonable usage fee.
The main issue for the court was whether a widely shared social media photograph could be reused commercially without the agency’s permission that created it. Acting Judge S Cowen found it could not.
He determined that Pixel Kollective (Pty) Ltd retained copyright in the image and that its use in a branded campaign was a clear infringement
Pixel Kollective (Pty) Ltd, a photography and content production agency, was hired to cover a social event called the Breakfast Club in May 2021. During the event, its employee, Kgomotso Mapholo, photographed influencer Ntando Duma Mthombeni and later shared several images with her for social media, asking for credit.
Duma Mthombeni posted the images on her Instagram account, crediting Pixel. However, one of those photographs was later used by Simba (Pty) Ltd in a commercial campaign without consulting or compensating Pixel. This use was arranged through an influencer agreement set up by MSL, part of MMS Communications South Africa (Pty) Ltd.
Pixel argued this was a clear violation of its copyright. Duma Mthombeni claimed that her styling, pose, and presence contributed to the image and that she did not realise she needed further permission.
Ownership and authorship of the photograph
The court rejected the argument that copyright had transferred to the event organiser or Duma Mthombeni. Judge Cowen stated that Pixel’s standard terms preserved its ownership, noting that “copyright probably remained with Pixel despite its contractual relationship.”
On the topic of authorship, the court made a clear distinction between being in a photograph and creating one. Judge Cowen said that “the author is the person or persons responsible for composing the photograph, rather than its scene or subject.” The court acknowledged that the technical and creative choices made by the photographer, like lighting, angle, and editing, constituted authorship.
Duma Mthombeni’s contribution through her clothing, pose, and appearance did not meet this standard. The court found that these aspects related to the photograph’s subject rather than its legal composition.
Judge Cowen stressed, “Without Pixel there would be no photograph,” highlighting that copyright protects the act of creation, not just the subject shown.
Knowledge and conduct of the influencer
The court criticised Duma Mthombeni’s actions, and her claimed unawareness. It found that her experience as an influencer and her act of crediting Pixel indicated she understood that rights existed in the photograph.
Judge Cowen concluded, “She was probably aware that copyright existed in the work.” He described parts of her testimony as evasive, especially concerning how the image was used in the Simba campaign.
The court also found that no attempt was made to obtain permission, even though Pixel was clearly identifiable as the source of the image.
Damages and commercial use
While Pixel initially claimed R200,000, the court dismissed much of this as exaggerated and lacking support. Instead, it focused on what would reasonably be charged as a usage fee for the commercial use of a single photograph.
Judge Cowen stated that the claim appeared more like a wish list than a fee that could be charged, ultimately awarding R27,644 as a fair and substantiated amount.
The court emphasised that damages should reflect actual financial loss, not hypothetical or inflated production costs, especially since the photograph had already been created under a separate contract.
Court order
The High Court ordered that Duma Mthombeni must pay Pixel Kollective (Pty) Ltd damages of R27,644, along with costs on Scale B.
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