Fun of selfies take on a different hue when commercial rules apply

Treat others as you would your selfie

So- Called “selfies” are all the rage and are trending across the globe- and the high and mighty are not immune: witness the famed selfie featuring Danish Prime Minister Helle-Thorning Schmidt, UK Prime Minister David Cameron and US President Barack Obama at Nelson Mandela’s memorial service last December.

“Selfie” was named the word of the year 2013 and is now a word in the Oxford Dictionary. It is all part of the digital revolution, unless you are in the EU, that is, and the European Court of Justice’s “right to be forgotten” applies. EU citizens can request Google to delete a link associated with them. For most of the rest of us, the digital trail is our digital reality.

We should all pause as we look at the intellectual property implications of commercial exploitation and non-consensual use including public/celebrity and political figure endorsements.

The issues that demand attention – and are a potential minefield – relate to publicity rights, commercial endorsements and issues of ownership. In as much as selfies now trend on social media, the use of selfies on social media to transmit images and messages even of yourself, or which exploit public figures, is cause for legal concern.

The most famous case of a presidential embargo on selfies is not a surprising one: Samsung retweeted the selfie taken by US Boston Red Sox baseball world series champion David Oritz of himself and President Obama at an event at the White House. To all intents and purposes it was a happy and consenting US president who smiled into the camera when Oritz leaned toward him with his mobile phone in his outstretched arm. It was a joyous photograph and Oritz tweeted the photograph scripting: “ What an honour! Thanks for the #selfie, @BarackObama ”. Had that been all there was to it the tweet and photograph would have not attracted the ensuing backlash and legal, commercial and policy attention.

It just so happened that Orizt played the wrong ball at this moment and the US President and his staff were unaware that the phone had been provided to Oritz by Samsung as a promotional marketing endorsement campaign. Samsung retweeted the image with the Samsung trademark. This caused furore as US presidential policy which is akin to South Africa is that the President’s name and image cannot and was not to be used for commercial purposes.

From a legal perspective, in terms of US law, there was a smiling and consensual US president who is alleged to have said to Oritz as he leaned forward to take the selfie “ Oh, he wants to take a selfie “. In addition as both personalities are public figures it is unlikely that the US President has an action for breach of publicity rights. That is not the problem. The problem was the use of the photograph with the Samsung name, trademark and mobile. It is here that the company violated the presidential “no commercial use” rule as well as the US president’s rights of publicity.

Was this ambush marketing, commercial endorsement exploitation or lack of maturity on the part of the company?  All these factors need to be considered – but the fact is that it was a transgression as the image was retweeted and used inappropriately.

The purpose for which the image or likeness of a person is used is always important as are the circumstances with-in which use is made of the image.

The principle is quite simply that no one may use an image or likeness of another person without consent, for gain. While there is no innovation regarding selfies it is a timely reminder that in the internet and multi- media platform age where abuse are defamation are all too easy, people should be cautious.

Selfies are on the path to changing intellectual property rules in the digital world.


14 July 2014 Business Day, Business Law and Tax Review