A Joburg freelance photographer and content creator is suing television actress and fashion designer Mbali Enhle Maphumulo for a whopping R143-million for infringement of copyright and loss of income.
Lenswoman Cyan Haribhai has filed the lawsuit in the Joburg High Court after accusing the thespian and designer of clothing label Essie Apparel, of allegedly taking the photographer’s fashion pictures published on a fashion website, Photo Vogue, and reposting them on her Instagram account without her authorisation.
In the court papers, which we have seen, Haribhai said she took the pictures at the South Africa Fashion Week (SAFW) Autumn/ Winter 2020, which was held in Sandton, Joburg after being assigned and given permission to shoot and process photographs of both backstage and runaway shows for the entire duration of the event.
She said Maphumulo and Essie Apparel, who are cited as first and second respondents respectively, were among a bevy of participants who showcased their clothing collection at the show.
Haribhai said she shot and processed various photographs of the duo’s clothing collection and sent them to be published on Photo Vogue, an international online platform for visual artists to showcase curated portfolios of their work. The photographer said she also published the photographs on her Instagram account called Cyanstrange.
On January 6, 2020, she said, Maphumulo posted the pictures, which she copyrighted, on her Instagram account called @enhlembali without her authorisation. “In the premises the posting constitutes an unauthorised copy, reproduction, alternatively a reproduction of a substantial part, further alternatively an adaption of the copyright works. In the premises further, the posting constitutes a direct infringement of the plaintiff’s conferred right of copyright in the copyright works as contemplated in Section 23 of the act,”read the papers.
Haribhai said after her posting, various media platforms published articles linking Maphumulo and her company to the acclaimed fashion journal Vogue Italy. This, she said, amassed her and her company massive publicity but was against the law because as the owner of the copyright of the photos, she did not give her a permission to do so.
“The plaintiff has never assigned, ceded, licences or in any manner transferred to the copyright fully or in any limited nature to a third party. The action of the first and or second defendant was unlawful, which unlawful conduct has caused the plaintiff damages in the form of loss of market share and loss of
income and profit.
“In the premises, the plaintiff is entitled to claim damages against the first and or second defendants as contemplated in terms of section 24(1) and section24(3) of the act in the amount of R143 268 212.42.”
She said her lawyers had sent a letter of demand to Maphumulo’s lawyers to pay her for the damage she suffered but they turned a blind eye to it.
She said in the event the court does not agree with the quantum she is demanding from the former Generations actress; it should alternatively order an inquiry to investigate the damage she suffered and propose a reasonable amount to be paid out to her.
Maphumulo confirmed that Haribhai is demanding the staggering amount from her even although she did not give her permission to photograph her items at the event.
“I have received the summons that seeks to claim over R140-million from me. Three years after I reposted the image, she starts to harass my team and business partners with threats and her frivolous claim,” she said in a statement.
She said she was perplexed that Haribhai, whom she did not know from a bar of soap, was suing her for shooting and using the images of her own items for commercial gains without her permission.
“It baffles me how she would seek damages from me for reposting from her page an image of my work, that she never sought any authorisation from me nor my company to use for her financial gains with Photo Vogue or Vogue Italia.
“This is just one of the many shakedown attempts I have had to deal with and I will not stand for these bully tactics orchestrated so that I may quiver and cower into some obscure corner.
“There’s a lot that goes into creating a fashion collection and even more into curating and directing a fashion show, which became the artistic backdrop and canvas for the image she took which in turn she made money off from Photo Vogue,” Maphumulo said.
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