“…the mere lack of a legal regime in our jurisdiction that address the question image rights cannot be taken to mean that persons who suffer wrongs cannot seek redress from courts of law when in actual fact they are aggrieved.” – Hon. Justice Peter Adonyo in Asege Winnie v. Opportunity Bank (U) Ltd & Anor  UGCOMMC 39
This blogger has come across a recent High Court judgment from Uganda in the case of Asege Winnie v. Opportunity Bank (U) Ltd & Anor  UGCOMMC 39 which sheds new light on the emerging topic of personality rights and protection of image rights, which is not catered for in a perfect “unified” legal system but rather in a combination of rights and causes of action under the Constitution, common law and various statutes on intellectual property, defamation and consumer protection.
The most recent edition of Kenya Copyright Board (KECOBO) newsletter (cover pictured above) focuses on photography and image rights. A copy of the full Issue 18 is available here.
In the lead article starting on page 4 by KECOBO Executive Director, a compelling case is made in favour of specific legal protection of image rights, particularly in the case of celebrities. The article uses the oft-cited case of Dennis Oliech v. EABL (previously discussed here) to illustrate the limitations of existing intellectual property (IP) regimes in cases of commercial appropriation of one’s personality and/or image.
The article reads in part as follows:
“The use of images and personality rights is gaining currency and there is need to ensure that the same is well regulated and third parties do not take undue advantage of the commercialisation of the same. Guernsey provides a good example and maybe we should follow suit.”
This view from the Copyright Office begs the question: will Kenya be better off with a specific law on image rights like Guernsey? This blogger argues that the answer must be “No”.
This week, African Regional Intellectual Property Organization (ARIPO) hosted the WIPO African Sub-regional Workshop on New Perspectives on Copyright organized by the World Intellectual Property Organization (WIPO) from 20 – 21 July 2015.
The Workshop drew Heads of Copyright Offices in the ARIPO Member States and some Observer States who took part in this crucial Workshop aimed at discussing the management of Copyright and Related Rights in the face of new challenges emanating from new digital technologies. Also in attendance were copyright officials from Jamaica and Trinidad and Tobago who shared their experiences with their African colleagues.
What follows is a summary of the presentations made by the various participants at the Workshop.
This blogger has come across a recent judgment from the High Court in Uganda in the case of Ssebagala v. MTN (U) Ltd & Anor. In this case, Ssebagala the former Mayor of Kampala spoke to journalists who were waiting outside the precincts of Parliament. Ssebagala was being vetted by Uganda’s Parliamentary Appointments Committee following his nomination for appointment as a Cabinet Minister.
During the question and answer (Q & A) session, Ssebegala is said to have responded to the journalists using his “characteristic style and skill which obviously generated a lot of merriment”. Ssebagala’s interaction with the press was publicly broadcast in Uganda as current news of public and political events. Thereafter SMS Media Ltd, the third party in the suit, adapted audiovisual recordings of Ssebagala into caller ring back tones (CRBTs) and offered these caller tunes to leading mobile network MTN Uganda for sale to the latter’s subscribers.
‘Image rights’ generally refer to an individual’s proprietary right in their personality and the right to prevent unauthorised use of their name or image or a style associated with them. In a previous blogpost here, we have discussed the commercial appropriation or exploitation of a person’s identity and associated images as a commercially valuable asset, particularly for individuals such as actors, musicians and athletes who commercialise their images in association with the promotion of products or services.
The protection of the image of an individual has increased over the years in many jurisdictions, either through case law or through limited inclusion in other Intellectual Property (“IP”) laws such as the Copyright Act in some jurisdiction. However, with the exception of Guernsey, no legislation exists anywhere in the world that is exclusively drafted for the protection of all aspects of someone’s image. In light of this gap, the protection of image rights remains largely a matter of contractual and/or constitutional interpretation, especially in Kenya. Therefore, it follows that disputes relating to the protection of image rights in Kenya may require some ‘judicial law-making’, as it were.
This year, there have been three cases relating to image rights that have arisen and received media attention in Kenya, namely Suzie Wokabi v. Microsoft; Kitosiosio Ole Kutuk v. Safaricom; Tealaso Lepalat v. the German Embassy in Kenya. No rulings and/or judgments have been reported in these cases thus far therefore this blogpost merely highlights the facts and issues presently in the public domain with a view to illustrate some of the challenges in protection of image rights.
In the Suzie Wokabi v. Microsoft case, media reports indicate that Wokabi accuses Microsoft East Africa of misappropriating images of her hands and her son’s foot and using them for billboard advertising of Microsoft products without her consent. According to the media, Wokabi was approached by Muthoni Njomba, a makeup artist and entrepreneur who asked whether she could use Wokabi and her son as models for her artwork. Njomba then got a professional photographer who took photos of Wokabi’s hands and her son’s foot.
Thereafter Wokabi claims she was “shocked” when her husband told her that he had seen the same photo on a Microsoft billboard accompanied by the words “Art Deeper with Windows 8”. Njomba in a media interview reportedly admits that she approached Wokabi but denies the allegations that she sold the photos to Microsoft claiming that the photos belonged to the photographer who had the rights to do whatever he wanted with the photos.
Wokabi has since reportedly gone to court to seek “a declaration that her constitutional right to property was violated by Microsoft, an order for compensation for general damages and compensation for being used as models, taking into account her celebrity status, recognisability and reputation”.
In the Kitosiosio Ole Kutuk v. Safaricom case, it is reported that telecommunications giant Safaricom misappropriated and used a photograph of maasai moran on its GSM Sim Cards. John Ole Muli, the brother of the maasai moran discovered his brother’s photo on the Sim Cards while in Loitokitok town where the the Sim cards were being sold. The maasai moran in question, Kitosiosio Ole Kutuk claimed that the mobile communication service provider did not seek his permission before the photograph was used in the GSM Sim Cards being sold countrywide.
Kutuk therefore sued Safaricom for using his image without his permission or signed contract and it is reported that High Court Justice David Onyancha has heard from Kutuk’s lawyers that there was neither a contractual agreement was entered between Kutuk and Safaricom nor any compensation paid to Kutuk.
In the case of Tealaso Lepalat v. the German Embassy, it is reported that the German Embassy in Kenya was a co-sponsor in the Lake Turkana Cultural Festival and that a photo of Mrs Lepalat was allegedly taken and used by the Embassy to promote the Festival. As a result of the photo being taken and used, Mrs Lepalat’s her husband physically assaulted and divorced her for not consulting him before allowing use of her photo to promote the event. Mrs Lepalat also claimed that she has since been cast out of her village because she failed to seek the consent of her husband and elders before having the photograph taken. Mrs Lepalat maintains that she never authorized any person to take and use her photo in connection with the event.
The photograph at the centre of the dispute has since 2012 been used to promote the Lake Turkana Festival, held in Turkana’s Loiyangalani Village every year.
Mrs Lepalat, supported by her brother Gideon Lepalo, has taken the matter to court and is seeking compensation from the German Embassy for her physical and emotional damages she has suffered.
However, the Attorney-General of the Republic of Kenya, who was enjoined in the suit as an interested party, has reportedly told the court that the German Embassy can only be sued if the Federal Republic of Germany waives diplomatic immunity it enjoys in Kenya under the Privileges and Immunity Act. The A-G further contended that that the court has no jurisdiction to hear the matter, as it is barred from hearing the dispute by the Privileges and Immunity Act alongside international laws that protect foreign diplomats.
Therefore the AG asked the court to dismiss the proceedings against the German Government and its Embassy in Kenya.
In rebuttal to the AG’s arguments, Lepalat insists that the the German Embassy waived its immunity when it violated her rights by using the photograph without considering the Samburu community’s beliefs. Lepalat and her family further argue that diplomatic immunity, as per Kenyan laws, does not cover professional or commercial activity. In this connection, Lepalat contends that the Lake Turkana Festival is a commercial activity for which the German Embassy cannot invoke immunity. In addition, the use of her photograph without her consent was not the embassy’s official duty hence cannot be covered by diplomatic immunity.
As these cases proceed to full hearing and determination, this blogger will be keenly following the developments.
The major story in Kenya this week was the visit by Chinese Prime Minister Li Keqiang to Kenya, accompanied by a 500-member delegation. During this visit, it is reported that Kenya signed 17 multi-billion shillings deals with China including grants of Sh 18.6 billion and loans of Sh 146.8 billion – totaling Sh 165.5 billion. This blogger can only hope that some of these funds will be directed towards promotion of Kenyans’ intellectual property (IP) with our Chinese trading partners as well as strengthening IP enforcement mechanisms throughout Kenya’s land, air and sea boundaries.
As always, your comments are invited on this week’s commentaries on the JB Maina-Safaricom settlement (see here) and WIPO’s new 6-year strategic direction (see here). What follows is our brief commentary on some of the other IP-related news from this week.
Read the full article here.