Copyright News
Managing Image Rights in Sports
By Dr Marisella Ouma
n 2011, a macaque monkey took David
Slaters camera and managed to take
several photos including selfies, some of
which subsequently became famous through
Wikipedia. The main legal issue that arose
was, “Who was the owner of the copyright
in the image that was taken by the macaque
monkey”? While this may still be debated,
ownership of property including Intellectual
Property (IP) in Kenya like in most countries
is either by a natural person or a legal entity.
If the matter were to land in a Kenyan
court, the issue of the monkey owning
the copyright would not arise as it is not
recognised as a natural person or legal entity.
In Kenya, photographs are protected as
works under copyright. The copyright owner
has the exclusive rights to control reproduce,
distribute, communicate to the public, sell,
or even broadcast the photographs. The
protection is same as that granted to all other
copyright works. The owner of the copyright
in a photograph is the person who takes the
photo or under whose direction it is taken. If
the work is done for hire, commissioned or
done in the course of the employment, the
copyright owner is presumed to be the person
who commissioned the work or the employer
unless there was a contract stating otherwise.
The author also has the moral rights; namely
the right to the recognised as the author and
the right to object to any modification that
may be prejudicial to his interests. When it
comes to images, copyright addresses the
issues of ownership to a certain extent.
For instance, in the case of a photograph,
the person who takes the photograph is
deemed to be the owner of the photograph
unless it was taken as a commissioned
work, work for hire or done during the
course of one’s employment in the absence
of a contract to the contrary. However, it
is important to look beyond the copyright
issues and focus on the image itself. Can the
person who took the photograph do whatever
they may wish with the photo without the
authority of the subject of the photo? This
becomes an issue especially when the subject
is a famous/ well known personality. In
a recent case, the East African Breweries
Limited (EABL) used the images of some
famous Kenyan footballers in one of their
advertisements. The billboard bearing their
images became an issue as the subjects
claimed that they did not authorise EABL
to use their images. The case raised several
questions namely; (a) Who owns the image
rights? (b) Can a player claim image rights
from a photo taken during the course of the
Kenyan law at the moment is not clear on
this issue but we can learn from the Court of
Justice of the European Union (CJEU), which
in 2000 made a decision on a similar matter.
The CJEU held that a player cannot divorce
himself/herself from the obligations under his
contract with the club. In the Kenyan case, if
the rights are to be claimed - it would be by the
club. So why the big deal with image rights?
It is clear that there is a general preference to
use the images of persons who are popular
such as sports personalities, actors/ actresses
and other well-known persons for advertising,
promotions, merchandising or even promotion
of certain values.
The assumption is that people are
more likely to associate with the famous
personalities than those who are not known.
Many commercial entities have capitalised
on this to sell their products and services
as illustrated in the above EABL case.
Image rights may broadly be defined as the
commercial appropriation of someone’s
personality including their image. The right
to one’s own image is the ability to decide
when, where, how and by whom one’s image
can be captured, reproduced, published and
distributed and under what circumstances.
Personality rights therefore arise where a
person’s name voice signature, photograph or
likeness has a commercial value, which may
be used for purposes of advertising or selling
of products or services.
Personality merchandising arises where
a person’s images or likenesses are used
to promote the sale of goods and services
as it increases the appeal to the potential
customers. The images or personality rights
may also be used for purposes of promotions
of certain values. As stated earlier, copyright
may be used to a certain extent to protect
one’s image right. The subject may claim the
rights as part and parcel of their moral rights
if they commissioned the photographs/images
to be taken. They would thus claim protection
as a moral right. They will thus be able to
control the use of their images by third parties
and ensure that they have clear terms in their
contracts on the use of their images.
One can also ensure that they have a clause
on personality rights within their contracts,
which should clearly set out terms of use by
third parties. For instance, the contract should
indicate the product or service, whether it is
an endorsement or mere use of the image,
specify the consideration and duration of the
use of the rights and specify which platforms
and geographical area.
From the above, it is important to note
that there is no specific legislation that deals
with image rights but one can rely on various
legal instruments to protect one’s image.
However, the Bailiwick Guernsey is the first
in the world to introduce legislation on image
rights; the Image Rights Ordinance 2012 and
the Regulations of 2012.
The law is of particular interest to those in
the famous and well-known personalities. It
provides for registration of personalities and
images. Under this law, personality is defined
as ‘the public perception of a person which
includes a natural person, a body corporate,
two or more persons intrinsically linked in
the eyes of the public, a group or a fictional
character’. While images are defined to
include ‘name, voice, signature, appearances,
expressions, mannerisms, photo, or any
illustration or representation of a person.’
The law sets out the rights and remedies
available to the registered owner of the
rights and registration is proof of ownership.
Personalities are registered for an initial
period of 10 years, which may be renewed
indefinitely. Images are registered for an
initial period of three (3) years and may be
renewed after every three years.
The cost of registration is an equivalent
of approximately Sh160,000. Registration
under this law provides clear identification
of the personality and the image in respect of
the protection sought and provides the date
it was first claimed and help in enforcement
of the rights. In Kenya, as stated earlier,
copyright law is applicable to the extent that
it is dealing with the underlying copyright
issues. However, there is not specific law
that covers the image and personality rights
and it is a new area that is being developed.
Other laws that one can rely on are privacy
laws, common law and contract law. 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.