Rachel Kolisi, wife of Rugby World Cup winning Springbok captain, Siya Kolisi, recently took to social media to voice her unhappiness with the publication of an updated edition of the unauthorised Siya Kolisi biography penned by author Jeremy Daniel: Siya Kolisi Against All Odds.
Rachel Kolisi expressed the view that Siya Kolisi’s story should be his to tell and he did not approve the biography, or benefit from it in any way. In an emotive post, she called for a boycott of the unauthorised biography in order to #SaveSiyasStory.
The barrage social media interest and discussion this has raised can be compared to a Springbok maul a few meters from the try line: the debate has been rolling. The main question of interest? Are unauthorised biographies lawful?
The short answer is that unauthorised biographies are allowed, and indeed are not entirely uncommon in the publishing world. There is no reason per se why a writer cannot write an unauthorised biography. After all, having conducted research and gathered information about a person of interest, a writer can express his or her literary talents by conveying that information in a written form, whether a short media article, a magazine special of a few hundred words or even a biography of a few hundred pages. Writers may exercise their right to freedom of expression in this way, and quite commonly do. By the same token, Rachel Kolisi is entitled to voice her unhappiness with the biography, in the exercise of her right to freedom of expression, also.
Writers and publishers must, however, be cautioned that there may be a few legal risks which might blindside them if they do go ahead with an unauthorised biography.
The first potential risk is a defamation claim.
A biography styled as a “tell all exposé”, filled with revelatory information, could result in a defamation claim if any of the statements contained in the biography are untrue, and are damaging to the reputation of the person about whom the book was written. Of course, if untrue, both writer and book would also lose all credibility, which is why fact-checking must always be an essential part of the process of writing a biography.
In the case of Siya Kolisi Against All Odds, there is no suggestion that the book contains defamatory statements. Indeed, the author, Jeremy Daniel, has described the book as being one that is positive and celebratory in its account of Siya Kolisi, and he has said that he took care to communicate the facts with accuracy. So, a defamation claim will not #SaveSiyasStory.
Infringement of the right to privacy
The second potential risk, when it comes to an unauthorised biography, is an alleged infringement of the right to privacy.
The right to privacy is a human right enshrined in our Bill of Rights. However, when it comes to public figures, assessing where the public life ends and the private life begins, is not entirely clear-cut. Being in the public eye, a celebrity will necessarily forego total privacy and, in the internet age, a simple online search can reveal reams of publicly available information about a well-known personality. Celebrities also “put themselves out there”, so to speak, with their own social media pages, by appearing at public events, and so on. Celebrities enjoy the benefits of their fame, and the natural tradeoff seems to be at least some loss of privacy.
Some commentators have suggested that one should consider whether the information being revealed is in the public interest. In the case of, for example, a politician, the public may well have an interest in his or her private endeavours, given that he or she holds a public office and a great public accountability. In assessing the right to privacy one might also consider how the private information was obtained. If through unlawful means, for example, by hacking private emails, that may well point towards an infringement of a public figure’s right to privacy.
In the case of Siya Kolisi Against All Odds, again, there is no suggestion that Siya Kolisi’s right to privacy has been in any way infringed by the publication of the unauthorised biography. The information contained in the book is largely publicly available, or otherwise the result of interviews conducted with people who have played a role in the Springbok captain’s life. The biography is described simply as a telling of Siya Kolisi’s life story, and he is a high profile South African figure, and a person of international interest.
Infringement of Intellectual Property Rights
A third potential legal risk in the publication of an unauthorised biography is the infringement of intellectual property rights.
One might ask whether a biography of this nature amounts to copyright infringement. Briefly put, copyright is a right that subsists automatically upon the creation of a work recognised in terms of the Copyright Act of 1978. A literary work, which is what a biography would be, is a protectable copyright work, and the copyright in a literary work is owned by the author of the work. So, Jeremy Daniel, and not Siya Kolisi, would own the copyright in the book. This is because the book is the product of Mr. Daniel’s own effort and skill. The fact that the book is about Siya Kolisi does not transfer any right of copyright to him. Of course, where writers, for example, quote the person they are writing about, they must make it clear that the words they are using are a quote, and not their own words, otherwise they may indeed be infringing that person’s copyright.
If Siya Kolisi were to own a trade mark registration for his name, SIYA KOLISI, in relation to, for example, printed materials such as books, that could potentially afford him a ground on which to object to the use of his name in relation to the book. The difficulty, of course, is that the book now in issue is about him and will necessarily reference his name. In order to infringe a trade mark, the alleged infringing use must be “trade mark use”. In other words, the trade mark must be used to communicate a brand origin, and not merely to describe the article (or person) to which it is applied. It is likely that the use of Siya Kolisi’s name in relation to a book about him, would be considered bona fide descriptive, and acceptable, use and would not amount to trade mark infringement.
There is no suggestion that any intellectual property rights have been infringed in Siya Kolisi Against All Odds.
The final potential legal risk is perhaps the most relevant: publicity rights.
Publicity rights are a form of personality property rights. We all enjoy these rights as they are our rights in and to our identity, but in the case of celebrities, these rights take on a distinctly commercial flavour. Celebrities have an advertising identity, as demonstrated in the market in the form of very lucrative celebrity endorsement deals.
It would certainly not be acceptable to make use of a celebrity’s name and image in advertising a product or business without his or her consent. This would mislead the public into thinking that the celebrity has endorsed the product, perhaps encouraging fans to purchase the purchase the product, when in fact no such endorsement is in place. This was confirmed in court some years ago, when former Miss South Africa Basetsana Kumalo took legal action against Cycle Lab (Pty) Ltd for using a photograph of her, taken when she was shopping at one of its stores, in its advertising materials. Ms Kumalo’s consent was never obtained to use the photograph, and the court confirmed that this infringed her right to identity.
The question of publicity rights is, again, a little less clear in the case of a biography. Of course, a book about a particular individual is likely to reference that person’s name and probably also depict images of them. If, however, there is a possibility that the average, reasonable consumer walking into a bookstore will be confused about whether or not the biography has been authorised, the author and publisher may well find themselves facing claims of passing-off and infringement of publicity rights. This will be a question to be considered on a case-by-case basis, looking at the biography in dispute and how it is being promoted and sold. Another factor to consider would be, for example, whether it is common knowledge that biographies are often unauthorised. If that is so, it is perhaps unlikely that consumers would jump to the conclusion that every biography has been endorsed by its celebrity subject, if not, it would not be unreasonable to insist that the biography be described as “unauthorised” in order to avoid any consumer confusion.
It the case of Siya Kolisi Against All Odds, it is perhaps noteworthy that cover of the updated second edition now bears the words “unauthorised biography”. This did not appear on the first edition. The addition of these words probably removes any risk of consumer confusion, and it cannot be said that there is a misrepresentation on the part of the author, or his publisher, that the biography is an authorised one.
So can Rachel Kolisi #SaveSiyasStory? While she may be able to achieve some result through wielding her substantial social media following, legally speaking, the answer is no. In the case of an unauthorised biography, it is not possible to have the biography pulled from the shelves only because it is unauthorised. There may have been a possibility of taking issue with how the biography was being promoted, but it seems that Siya Kolisi Against All Odds, now described as “unauthorised” on its cover, is here to stay.