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A recent South African copyright judgment introduces us to the weird and wonderful world of social influencers, in this case the influencer Ntando Duma Mthombeni (Duma), in Pixel Kollective (Pty) Ltd v Nthando Duma Mothombeni and MSL, a division of MMS Communications South Africa (Pty) Ltd, 15 September 2025.
This decision draws a firm line in the sand around copyright ownership in South Africa's influencer economy and offers a sharp lesson in what happens when content gets reused for commercial campaigns without the creator's permission. In this article, we discuss some of the legal issues that were raised in this case, unpack the key IP takeaways and why this matters in 2025.
The core dispute
A company called Pixel Kollective (Pty) Ltd (Pixel). Pixel is a 'photography, videography and content production agency' which sought damages from social influencer Duma, for breach of copyright in respect of a photograph.
The photograph
The photograph in question shows Duma at a social event called the Breakfast Club that was on held on 23 May 2021 ('the disputed photo'). The disputed photo was taken by a Pixel employee, Kgomotso Mapholo, who then sent it to Duma via WhatsApp, with request to credit '@pixelcollective' should she post the disputed photograph on social media. The disputed photograph was subsequently used by the snacks company Simba (Pty) Ltd as part of a commercial social media campaign, without Pixel's consent.
A synopsis of the law
The question before the court was simple but important: who owns the rights to the photo and was its use lawful?
The rights (i.e. ownership) are governed by South African copyright law, which is contained in the Copyright Act 98 of 1978 ('the Copyright Act').
Artistic works
In South Africa there is a category of works called 'artistic works'. Artistic works are eligible for copyright protection if they are original. Don't let the term 'artistic' fool you, we are not talking about high art hanging in the Louvre. The Copyright Act defines an artistic work broadly and covers everything from a studio editorial to a casual event snap, even if it's not "giving Renaissance". In fact, the Act explicitly states that protection applies "irrespective of artistic quality" so yes, even a pixelated Instagram Story might qualify. It's worth noting that the Copyright Act says that the term 'photograph' does not include 'any part of a cinematograph film'.
Copyright ownership
The Copyright Act tells us that, in the case of an artistic work, the copyright belongs to the 'author'. Normal people obviously don't use the word 'author' when they're talking about photographers, but the Copyright Act does make it clear that in the context of photos the author is 'the person who is responsible for the composition of the photograph'.
In the absence of an agreement to the contrary, the photographer is the author, and if taken in the course of employment, the employer owns the copyright. In this case, the court agreed: Pixel retained ownership of the image.
Exclusive right
The author of the work has the exclusive right to 'do or to authorise the doing of various acts in South Africa including reproducing the work in any manner or form, making an adaptation of the work and reproducing an adaptation of the work'.
Copyright infringement
Section 23 (1) tell us all we need to know: using a work without permission from the copyright holder or causing someone else to use it, amounts to infringement.
This holds regardless of whether the image was "sent" to the person or reposted in good faith.
Some interesting quotations from the judgment
The following excerpts from the judgment are particularly telling:
Quote 1: 'Pixel has, in my view, demonstrated that it retained ownership in copyright.'
Quote 2: On the issue of whether Duma knew that using a protected work without a licence was an infringement: 'It was put to her (Duma) that... it is improbable that she would not know you need permission, she answered that she would reserve her comment. She smiled when giving this testimony. This is an aspect of her evidence in respect of which her evidence lacked credibility.'
Quote 3: 'She (Duma) is an experienced influencer and frequently photographed, and she was probably aware that copyright probably vested with others.'
Final thoughts
This case comes at a time when the South African creator economy is thriving, yet intellectual property enforcement, particularly in influencer-brand collaborations, often lags behind. However, this case makes clear: content is not free just because it is online.
In a digital-first world, content is currency and copyright is your contract. This case is a reminder that creators and agencies retain enforceable rights, even in informal or influencer-led spaces.
*Reviewed by Janine Thomas, Executive in the Intellectual Property Practice
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
