Permission to Post Is Not Permission to Profit: The Legal Complexities Behind Influencer Photos

By Sanda Nyoka (Candidate Attorney) | Reviewed by Stephen Hollis (Partner)

1. Introduction

Hiring a photographer to capture an event or create content raises a deceptively simple question: who may use the photographs, the photographer, the subject or the client who paid? The answer depends on authorship, ownership and permission. This article explains the position under the South African Copyright Act 98 of 1978 (the Act) and illustrates it with a recent case from the influencer economy.

2. Authorship and ownership

The author of a photograph is the person responsible for its composition. The copyright owner holds exclusive rights, including reproduction, first publication and adaptation, and may authorise others to exercise them.

As a general rule the photographer, as author, owns the copyright. Important exceptions apply:

Paid commissions. Where a person commissions the taking of a photograph, pays or agrees to pay for it “in money or money’s worth”, and the photograph is taken pursuant to that commission, the commissioner owns the copyright, unless otherwise agreed. Non-cash considerations may qualify, but a tag or the prospect of exposure should not automatically be treated as payment for a commission.

Employees. Outside the Act’s special commissioning and newspaper or periodical rules, an employer owns copyright in photographs made in the course of employment under a contract of service or apprenticeship, unless otherwise agreed.

Crucially, each of these defaults yields to the parties’ agreement: the commissioner and the photographer may contract that the photographer retains ownership. The first step in any dispute is therefore to read the terms of engagement.

3. The Pixel Kollective case

In Pixel Kollective (Pty) Ltd v Mthombeni (2025), the Johannesburg High Court considered copyright ownership in a photograph of influencer Ntando Duma and its unauthorised use in a commercial campaign. An employee of Pixel Kollective photographed Ms Duma at an event for which Homecoming Events had commissioned and paid for photography services. He sent her the photographs via WhatsApp for Instagram posting, requesting credit to Pixel, which she provided. One photograph was later adapted and used without Pixel’s consent in a commercial Simba campaign under her influencer agreement with a third party.

Ms Duma argued that she was the author because of her attire, styling, poses and suggested location. Cowen J rejected this argument. Composition concerns the photograph itself, including choices of angle, focus, timing, lighting and editing, rather than merely its scene or subject. The Court left open whether creating a scene could sometimes contribute to co-authorship, as no such claim was advanced. The photograph also satisfied the originality requirement.

Although Homecoming Events commissioned the work, the Court inferred from Pixel’s contracting practices, usual terms and the parties’ conduct that Pixel retained copyright.

Pixel had authorised Ms Duma to post the photograph on Instagram, or led her to believe she was authorised, but this did not extend to enabling Simba’s commercial use. The Court found infringement and rejected the suggested innocent-infringement defence to damages, finding that Ms Duma was probably aware that copyright subsisted.

The case illustrates that the person who commissions and pays for photographs will not necessarily own the copyright if the parties have agreed that the photographer or photography agency will retain it. It also confirms that permission to post a photograph socially does not automatically include permission to use it commercially – even where the person appearing in the photograph was not personally informed of the copyright terms.

Final takeaway: Permission to post is not permission to profit. Before using a photograph in sponsored content or allowing a brand to use it, confirm who owns the copyright and obtain the appropriate commercial licence.

4. Moral rights and tagging

Even where the photographer does not own copyright, they may remain the author of the photograph and retain moral rights under section 20 of the South African Copyright Act. These include the right to claim authorship and to object to any distortion, mutilation or other modification of the photograph that is or would be prejudicial to their honour or reputation. Infringement of these rights is treated as copyright infringement under the Act.

Section 20 does not prescribe a particular method of attribution, nor does it require an @tag, collaborator invitation or other specific social-media feature. This is consistent with Article 6bis of the Berne Convention, which protects an author’s right to claim authorship without prescribing a particular method of identification. The absence of a tag therefore does not automatically constitute an infringement of moral rights, although a failure to identify the author may raise attribution concerns. Comparative law offers further guidance: the UK Copyright, Designs and Patents Act 1988 requires identification to be clear and reasonably prominent and provides that, where an author specifies a particular form of identification, that form must be used; otherwise, any reasonable form may suffice. Australian copyright law similarly emphasises clear and reasonably prominent attribution. Both approaches focus on meaningful recognition of authorship rather than any particular technological feature.

Accordingly, whether an @tag, collaborator invitation or other form of credit is legally required will depend on the applicable law, the circumstances of use and the terms of any agreed or reasonably specified form of attribution. An author’s request for a particular form of credit may be relevant, but does not necessarily establish an absolute entitlement to that method in every case.

Importantly, attribution and authorisation remain distinct: crediting a photographer does not itself confer permission to use a photograph, particularly for commercial purposes. Conversely, permission to use a photograph does not necessarily extinguish the author’s moral rights.

5. The subject’s image rights

Copyright is only one part of the picture. A photographer’s ownership does not automatically permit the commercial exploitation of the subject’s image, which may infringe common-law image rights, particularly the rights to identity and privacy. The Performers’ Protection Act 11 of 1967 may provide additional protection where a photograph captures a qualifying performance. The unauthorised use of a person’s image in advertising may infringe their personality rights, particularly where it creates a false impression of endorsement. For advertising and endorsements, the prudent approach is therefore to secure both the necessary copyright licence and the subject’s consent to the intended use, preferably through a written image-use release.

6. Conclusion

This article has clarified that where a photographer is neither commissioned nor compensated, authorship and ownership will generally vest in the photographer. Where the photographer is commissioned and compensated, authorship remains with the photographer, while ownership vests in the commissioner, unless the parties have agreed otherwise.

This underscores the importance of a clear agreement setting out each party’s obligations regarding payment, ownership, permitted use and credit. In an industry that often overlooks those working behind the scenes, a properly drafted agreement remains essential to managing expectations and preventing disputes. However, copyright ownership is only part of the picture, as the subject retains separate personality and privacy rights in their image. Ultimately, appearing in a photograph does not automatically entitle you to license it.