Intellectual Property and Sports in Kenya: Copyright Protection of Image Rights?

IPKenya recently attended a seminar on Intellectual Property and Sports in Kenya co-organised by the Kenya Industrial Office KIPI and the Kenya Copyright Office KECOBO held in Nairobi. During the two-day seminar, several distinguished speakers from academia, legal practice and sports engaged us in a variety of interesting topics including: marketing, merchandising and licensing agreements and building successful sponsorship programmes, media and broadcasting rights, signal piracy, digital content and social media, sports contracts and key clauses to look out for, administration and enforcement of IP rights in sports and finally building an effective IP rights strategy in sports.

There was a lot of robust debate and discussions on these issues but there was one particular topic that IPKenya feels deserves special mention and examination. This is the intersection between intellectual property and image rights in sports.

Consider the recent case of Kenyan footballer Dennis Oliech who claimed his image rights had been violated and quit the national team, Harambee Stars.

The above photograph of Dennis Oliech, McDonald Mariga and Bob Mugalia celebrating after Stars scored their winning goal against Angola in a 2012 Africa Cup of Nations qualifier at Nyayo National Stadium.
This photo was altered slightly then used by East Africa Breweries Ltd (EABL), the current sponsor of Harambee Stars, in advertisements throughout Kenya including several road-side billboards.

AJ Auxerre striker Dennis Oliech, Parma midfielder Macdonald Mariga and locally based Sofapaka FC player Bob Mugalia demanded to be paid by EABL for using their images to run promotions for the team.
EABL declined and relied on the KES 110 million sponsorship deal with the Harambee Stars Management Board. Clause 9 of the agreement stated that the sponsor shall have the right “to use the images of members of the Harambee Stars team for promotional and advertising activities”

It was not in dispute that EABL had a group agreement with the entire Harambee Stars Team in respect of image rights, but can this agreement be relied on where certain players are singled out their images used in advertisements? In the present case, is EABL right to argue that the three players pictured represent the entire team so as to preclude EABL from entering into separate agreements for image rights with each of the three players? The players argued that EABL should have been required to seek their consent individually before using their image. In the absence of such consent being sought, EABL is in breach of their image rights and must pay them compensation.

The issue that arose during this discussion was that there is no single source of law that recognises image rights. The closest recognition is in the Copyright Act which defines artistic works to include photographs and recognises a photographer or a third party (in the case of a commissioned work) as the copyright owner.

IPKenya was however persuaded that the easiest way to provide for statutory recognition of image rights was to amend the Copyright Act. In this regard, the Argentinian Act is worth consideration.

Argentina’s Law No. 11.723 of September 28, 1933
states as follows:

“Article 31.
The photographic portrait of a person may not be commercialized without the express consent of the person portrayed and, where that person is deceased, of his spouse and sons or direct descendants thereof or, failing that, the father or mother. In the absence of the spouse, sons, father or mother, or the direct descendants of the sons, publication shall be free.
The person who has given his consent may withdraw it but must provide compensation for any damages caused.
Publication of a portrait shall be free where it is for scientific, didactic and general cultural purposes, or relates to facts or events of public interest or which have been developed in public.”

Despite of the above proposal, an overwhelming number of speakers and participants at the Seminar opted for a sui-generis law to protect image rights.

IPKenya wonder which way Kenya will go: sui-generis protection or amending the existing Copyright Act to provide protection of image rights?

The floor is yours.

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9 thoughts on “Intellectual Property and Sports in Kenya: Copyright Protection of Image Rights?

  1. Copyright law can ever only go so far in this area – it is clearly not meant for this purpose. In addition, image rights mean something very different to what was envisaged by the example given in Argentina.

    Guernsey will be introducing the world’s first formal registry for image rights later this year and interest in the ability to register, for all the reasons given above, is high. It will enable the registration of not only photographs and moving images but also mannerisms, likeness, voice etc. It is felt that this approach to fully identify the subject matter of an image right is far superior that trying to amend existing IP to fit.

  2. I would strongly recommend pushing for an amendment to the copyright law. A sui-generis right to publicity sounds great, but getting a new law takes much too much time and negotiation, etc. Especially in an election year. Copyright is a good forum for the right, anyway. You cannot stop people from taking your picture but you can stop them from making copies for commercial use.

    • I’m inclined to agree with you on this.

      To my mind, TK is a good example of how difficult and time-consuming it can be to come up with a widely accepted “sui generis” protection system.

      • I disagree Isaac, Vnzomo. At the center of copyright law and protection is and ought to be, in my view, the author, and what is deserving of protection ought to be originality as put down by the author (author in the wide sense in literary,artistic works, broadcasts etc etc). The passive object of copyright protectible works should have his rights protected in a separate legislation. Asking for image right protection under copyright law would be akin to and would open the flood gates to rights of models for sculptures and photos, and characters in books to similar protection under copyright law. I think a totally separate realm is law here is involved. For now, in Kenya, I would say an action may lie under common law.

  3. It is true that copyright can prevent the use of copies of a picture, but it falls far short of other image rights such as voice, mannerisms, indicia etc. In reality, it is these other rights which need to be protected as much as those protected by straightforward copyright. The reason for this is that nowadays it is more likely to be the other items which are used without consent rather than a single image.

  4. @David Evans, Aren’t voice, mannerisms and others embodied in a material form that is copyrightable? Thus, wouldn’t it be possible to argue that such copyright material infringes on the image rights of the complainant in question (assuming the copyright law is amended to provide for ‘image rights’)?

  5. I don’t think so as copyright by its very nature is something that has been created. A formal registrable image right of a person represents something inherent in that person, not a creation.

    • I am seeing this thread rather late but that notwithstanding, I agree with David. Copyright law protects the author, and going so far as to protect an “actor” would be going beyond the realms of copyright law. Image rights cannot be ‘related rights’ as found in copyright law in Kenya and in many jurisdictions. Image rights ought to be separate and distinctly legislated for.

      • I meant “going so far as to protect a “passive actor” would be beyond the realms of copyright law.

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