Election Campaigns and Copyright Infringement

It’s election year again for both Kenya and the United States. And with election year comes campaign posters, slogans, colours and logos. Today IPKenya’s attention was drawn to an interesting case of appropriation involving the photograph of a well-known freelance photographer that was used in a gubernatorial candidate’s campaign poster.

Evans Kidero, a rising public figure, is running for Governor in this year’s elections. On his official facebook page, the following poster is at the centre of the controversy:

Mutua Matheka, better known on twitter as “@truthslinger“, is passionate about photography and has taken amazing shots of people, places and things all over Kenya. Take a look at one of his photos of the Nairobi sky-line:

It is immediately apparent that the skyline in Kidero’s poster is identical to that in Matheka’s picture. Initially it was “@Mwirigi” that spotted the infringement and alerted Matheka (“@truthslinger”) about it:

This Matheka – Kidero story reminded me of the copyright dispute over Obama’s “hope” poster in the last US elections. But the major difference is that unlike the AP, Matheka is in a much stronger position to claim copyright infringement of his work. In other words, Fairey’s poster would pass the subjective and objective tests for copyright infringement, while the Kidero’s poster obviously wouldn’t as the Matheka’s photograph was used without any modification or transformation, other than some cropping.

Although Fairey’s poster was based on an AP photograph, he substantially transformed it from a work of photo-journalism into a mixed-media stenciled collage depicting Mr. Obama on a red, white and blue field. Therefore Fairey argued that his work was protected by the exceptions and limitation of copyright (‘fair use’) and it is indeed an original and creative work. Kidero and his campaign team cannot make such an argument in respect of their poster therefore they are likely to be accused of copyright infringement.

Fortunately for Kidero, Kenyans are not as litigious as they ought to be especially in protection of their IP rights. When Matheka was asked via twitter whether he intends to sue Kidero, he replied:

“I should be meeting him (Kidero) sometime next week. In the meantime, he has apologised and pulled down the poster.”

IPKenya hopes that politicians and their campaign teams will learn to be careful and ethical in how they go about branding their candidates because after all, the public is always watching!