Ntando Duma ordered to pay R27,000 for unauthorised use of agency photograph

EFF member, influencer, and actress Ntando Duma must pay over R27,000 for using an agency picture for a campaign without permission.

Johannesburg-based Pixel Kollective sued Duma for R200,000 in damages, alleging that their image was used without permission.

Pixel Kollective told the Gauteng High Court, Johannesburg, it wanted R200,000 in damages on the basis that it would have been entitled to charge Duma for the photograph.

The agency took photos of Duma at a function, which were for Simba as part of a commercial social media campaign. Duma embarked on a social media online campaign between May and June 2021 without Pixel’s consent.

She would assist Simba to take advantage of social networking to increase its brand exposure and broaden its customer reach.

One of the various deliverables under the influencer services agreement was to supply Duma with “one image usage rights”, according to court papers. The court found that the disputed photograph was later used by Simba

“Under the Copyright Act, 'artistic works', if original, are eligible for copyright. An 'artistic work' is defined to include photographs, and a work qualifies as artistic irrespective of the artistic quality thereof,” reads the ruling.

According to the judge, the case was pleaded to include various items, including a production manager fee (including administration, coordinating tasks, and responsibilities, tracking deliverables, including data backup and digital storage for one year) – R4,500.

The use of a photographer, lighting director, and editing of images (R14,600), a gear fee including the usage of a Nikon D850 DSLR Camera Kit (R22,366), total production value (R41,466).

In addition, the agency fee (25% of production value) to R10,366.50, advertising usage for website purposes only (15% of production value) (R12,439.80), internet advertising (R29,026.20, usage across Africa (125% of production value) (R51,832.50); damages and legal fees (R54,869).

Duma’s lawyer, Mmuso Matlala, said: “Our client is still considering her options, which turn on the same central factor.  On the one hand, Pixel Kollective was awarded only R27,644 of the R200,000 they claimed.”

He continued: “This outcome highlights the weakness of their case and may trigger the decision to appeal. On the other hand, the modest award may also suggest that the matter should be left to rest.”

loyiso.sidimba@inl.co.za