11
SPECIAL EDITION
The Lucrative Game of
Image Rights in Sports
By: Liz Lenjo
IP & Entertainment Lawyer
T
he sports industry is one very lucrative
industry for both the players and the
business in the game. However, it is
a game of smarts and needs the players espe-
cially to know of their rights and worth when
negotiating with corporates. Unfortunately, in
Kenya and Africa, we are still lagging behind
when it comes to corporates working with
players on endorsement deals. Sports person-
alities tend to be taken advantage of and as
such are always on the losing end.
What are image rights and what do
they mean for a sports personality? The
legal concept of image rights is sometimes
synonymously referred to as personality
rights. The rationale is that every individual
has a right to control the commercial use of
their image, likeness or other unequivocal
aspects of their identity, for example, the
Ezekiel Kemboi dance among others. This
means that an individual has a right to decline
the use of these aspects and/or earn from the
use of the same.
We have had instances where local
enterprises have attempted to use ambush
marketing tactics to push their brands.
Ambush marketing leads to tortious liability,
meaning that they are answerable in court
for the wrongful act of passing off and false
endorsement. Do you remember the “Go for
Gold” campaign that was almost catastrophic
for East African Breweries? After Julius
Yego confirmed they had no permission to
use his image, the entity approached him
for some sort of endorsement deal to save
themselves of a legal embarrassment.
The general legal principle is “If you do
not own it, seek the owners permission”.
This is a principle that transcends across
tangible and intangible property and must
be respected. It saves time and money for all
parties involved by going to the negotiating
table. It is a common misconception by most
of our sports personalities that they are being
“promoted” when their images are used
without their consent. In addition, this is not
the case when the country uses its athletes
to promote itself. Proper contracts must be
in place and proper compensation paid off
to such sports personalities because of the
goodwill their image and likeness brings to
a nation.
Where such deals are struck in regards
to personalities and endorsements, such
dealings must be in writing. It is not enough
to shake hands on a “gentleman’s agreement”
and perceive it as a concluded business
deal. Contracts are important because they
capture the nature of the endorsement - is
it purely online? What other duties is the
personality expected to fulfil?- , the scope
of the endorsement in so far as countries
and regions, the period of endorsement, the
parameters of the endorsement among other
important and pertinent issues perceivable
in such a deal. There are so many envisioned
circumstances that need to be captured in an
endorsement agreement that cannot be left at
the mercy of a handshake. Where there is too
much uncertainty, the relationship is ripe for
a myriad of legal tussles and issues.
To bolster the rights of sports
personalities, it is important that elements
of likeness are considered for trademark
registration as well. Which means, it is
important to seek intellectual property
attorneys for advice on how some of the
elements of their trade and personality can
be protected by trademarks. The likes of
David Beckham, Gareth Bale among others
have been very deliberate in finding ways
to register trademarks to elements that are
synonymous to their image, likeness and
aspects of their identity.
For example, Gareth found a way to
express his signature “Eleven of Hearts”
identity. It seemed impossible at the
beginning, but he found a way around it and
he now has a valid registration. If you are
wondering why trademarks, it is because
they do not expire and are renewable every
10 years until such a time the owner is either
bored with it or no longer finds a use for it.
It is not rocket science to secure
intellectual property rights or image rights in
the sports industry. What is key is knowledge
of the law and what it can offer you and
having the right people around you as a
sports personality to assist you maximise on
your assets. Unfortunately, the industry is yet
to embrace the need for IP lawyers in Kenya
and in the African continent. However, it is
our hope that with time, we shall appreciate
their role in this space.
As for corporates, it is time that marketing
campaigns creatively evolved to push brands
into the Kenyan market, African market and
beyond using local sports personalities. If
it has worked for brands like Nike among
others, it can work for the local industry as
well. The potential is huge for all players!!!
Note: The writer invokes Section 26 of
the Copyright Act and the same or similar
provision of jurisdiction of the online
resources used to source the images herein:
purely for educational purposes which is a
universal exception in copyright law.
Air Jordan by Nike- A
partnership between
the legendary
basketball player
Michael Jordan and Nike, with an image/likeness
of his signature slam dunk and his name. RIGHT: An
illustration of some of the trademarks created by
football players. SOURCE: Image from www.trollfoot-
ball.me. YEGO ILLUSTRATION SOURCE: Image extracted
from Nairobi Wire and example based on the recap of
the situation in 2015 as reported here: http://nairobiwire.
com/2015/09/eabl-do-the-honourable-thing-and-name-
julius-yego-as-brand-ambassador-of-tusker-photos.html
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info@copyright.go.ke
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P. O. Box 20414 - 00200, Nairobi
9. CAJ’s Email: complain@ombudsman.go.ke
10. CAJ’s Office Telephone Lines: +254 20 227 0000
The Kenya Copyright Board (KECOBO) views complaints as being key to the continuous improvement of its services. If you have a
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“Protecting Copyright, Encouraging Creativity” l ISO:
9001:2015
COMPLAINTS PROCEDURE
CopyrightNews
A Publication of the Kenya Copyright Board
ISSUE 33/SPECIAL EDITION
Supported by Consideration
Consideration is what the promisor
demands and receives as the price for
the promise. The promisor is the person
making the promise, and the promisee is
the person to whom the promise is made.
Consideration consists of something
to which the promisor is not otherwise
entitled. Consideration is the price paid for
the promise. The contract must specifically
state the terms and period of payment.
In the beginning of the current 2018/19
season the Kenya Rugby Union got into
contract issues with ‘senior National 7s
team who allegedly turned down contracts
handed to them for the 2018/19 HSBC
World Sevens Series. This happened as
a result of a salary chop on the players
without agreement with the players. As
stated earlier both parties must agree to the
terms of the agreement.
Made for a Lawful Objective
Contracts that are illegal or violate public
policy are considered void. In the modern
world, most contracts would have a clause
against betting and general gambling
activities. This is to reduce the likelihood
of athletes being used to influence the
outcome of matches.
Interpretation of a Contract
If there is a dispute as to the interpretation
of a contract, courts seek to enforce the
intent of the parties to the contract. The
intent which will be enforced is what a
reasonable person would believe that the
parties intended. Sometimes the provisions
of a contract are contradictory.
Drafting the Sports Contract
All professional services contracts have
important common clauses. It is important
to remember that when drafting a contract,
it is often a good policy to be a pessimist:
Think of what can go wrong. Though most
contracts begin as a beneficial relationship
between the parties, it is well known that
over time attitudes can change.
Therefore, the contract drafter should
use exceptional care to ensure that policies
and procedures are provided to address
situations and legal issues that might
arise when something goes wrong. Good
contract drafters protect their client in the
event such a situation might occur.
Continued from Page 9