Pixel vs Influencer: A Landmark Ruling on Who Truly Owns a Photograph

In a decisive victory for photographers and content creators, the Gauteng High Court in Johannesburg has delivered a landmark judgment that clarifies copyright ownership in the age of social media influence. The case of Pixel Kollective (Pty) Ltd v Mthombeni pitted a photography agency against a prominent social influencer, Ms. Ntando Duma Mthombeni, over the unauthorized commercial use of a photograph. The court's ruling not only awarded damages to the photographer but also provided a crucial interpretation of who the "author" of a photograph is under South African law, sending a clear message to the digital creator economy.

he Case at a Glance: A Disputed Photo and a Simba Campaign

The facts of the case are a familiar story in the world of brand partnerships and social media:

• The Photographer: Pixel Kollective was hired by Homecoming Events to photograph a VIP event in May 2021.
• The Subject: Influencer Ntando Duma Mthombeni was a guest at the event. A Pixel employee, Kgomotso Mapholo, took several photographs of her, including a medium close-up shot (the "disputed photograph").
• The Agreement: Mapholo sent the photos to Ms. Duma via WhatsApp with a request to "credit @pixelkollective" when posting them on her Instagram, which she did.
• The Infringement: MSL, a marketing agency for Simba, later engaged Ms. Duma for an influencer campaign. As part of her deliverables, she was to supply "1 image usage right." The disputed photograph from her Instagram was selected and used in Simba's commercial social media campaign without Pixel's knowledge or consent.
• The Lawsuit: Pixel sued Ms. Duma for copyright infringement, claiming R200,000 in damages.

READ: Three Former SABC Executives Ordered to Repay more than R11.5 million Unlawfully Paid to Hlaudi Motsoeneng

The Core Legal Questions Answered by the Court

The court's judgment tackled several pivotal questions of copyright law, with implications for all photographers and subjects.

1. Who is the "Author"? The Influencer or the Photographer?

This was the most critical question. Ms. Duma argued that she was the "author" because she was responsible for the photograph's "composition"—her outfit, hair, makeup, pose, and even suggesting a location due to the lighting.

The court firmly rejected this argument. Interpreting the Copyright Act, Judge Cowen held that the "person who is responsible for the composition of the photograph" refers to composing the photograph itself, not the scene or subject within it.

The author is the one who gives effect to the idea through their skill and effort, which includes:

• Choices on angle, focus, and timing.
• Decisions on lighting and equipment.
• The post-production editing process.

The court reasoned that a contrary interpretation would make copyright protection for photographers "arbitrary" and "self-defeating," as a photographer of a natural landscape would be protected, while a photographer of a person might not be.

2. Did Copyright Belong to the Event Planner or the Photographer?

Ms. Duma’s legal team raised a technicality: since Homecoming Events commissioned and paid for the photos, didn't they own the copyright under Section 21(1)(c) of the Copyright Act?

The court found that Pixel's standard terms and conditions, which were part of their quotation, explicitly retained copyright. Furthermore, the conduct of Homecoming Events—who contacted Pixel to ask if permission had been granted for the Simba campaign—showed that the parties understood copyright remained with Pixel.

3. Was the Influencer's "I Didn't Know" Defence Credible?

The Copyright Act states that a plaintiff cannot claim damages if the defendant was unaware and had no reasonable grounds to suspect that copyright existed.

The court dismissed Ms. Duma's claims of ignorance. Key factors included:

• Her 15 years of experience as a media personality and influencer.
• The explicit request for credit on two occasions.
• The terms of her own influencer contract with MSL, which required her to observe copyright laws.
• Her "evasive" and "lacking credibility" demeanor when questioned on this point in court.

The judge concluded she was "probably aware that copyright vested with others."

The Outcome: A Victory for Photographers, with a Dose of Reality

The court found Ms. Duma liable for copyright infringement. However, Pixel did not receive the full R200,000 it claimed.

The court found that Pixel's calculation, based on a hypothetical full-scale commercial shoot, was inflated. The judge noted that the photo had already been taken and paid for by the event organizer, and its use was for a single image.

Ultimately, the court awarded R27,644 in damages, a figure it derived by discounting certain unproven costs (like a dedicated lighting director) and applying a one-third reduction to other line items to reflect a reasonable "usage fee" for the existing photograph.

Key Takeaways and Implications for the Creator Economy

The Pixel Kollective judgment is a essential precedent with clear lessons:

1. The Photographer is the Author: The person who presses the shutter and undertakes the creative process of photography is the default author and first owner of copyright, not the subject.
2. Credit ≠ License: Crediting a photographer on social media is an attribution, not a transfer of copyright or a license for commercial use. Explicit, written permission is required for any commercial exploitation.
3. Get it in Writing: Clear contracts and standard terms are vital. Pixel's victory was bolstered by its documented practice of retaining copyright.
4. Ignorance is Not a Defence: Experienced influencers and content creators are expected to understand the basics of copyright law, especially when engaging in paid brand partnerships.

Conclusion: A Clarifying Moment for Digital Rights

The ruling reinforces the value of creative labor in a digital landscape where content is easily shared and repurposed. It empowers photographers to protect their work and clarifies the legal responsibilities of influencers who benefit from that work.

For anyone operating in the content creation space, the message is clear: respect copyright, understand the law, and always get a license. This judgment ensures that the rights of the creators behind the camera are not overshadowed by the fame of the subjects in front of it.