Ambush Marketing Meets Commercial Appropriation of One's Image

This month, the above image by the Coca Cola Company caught my attention especially since it is not easily ascertainable whether the professional sportspersons pictured have authorised the commercial exploitation of their image rights. The persona and image of a celebrity is a valuable commercial commodity and should be protected from dissemination and misappropriation without authorization. The term “image rights” means the inherent right of every human being to control the commercial value of their image, likeness, persona, or identity. This “right of publicity” was first recognized in the United States about sixty two years ago. Celebrities such as professional sportspersons generate the most economic value from this right. The right of publicity is violated when one appropriates someone else’s name or likeness for the purpose of economic benefit without his or her consent.

Whilst Kenya does not have a perfect “unified” legal system to protect image rights for celebrities such as professional sportspersons, the combination of rights and causes of action under the Constitution, common law and various statutes on intellectual property, defamation and consumer protection do afford some level of protection which enables celebrities such as professional sports persons to exploit and protect their image and brand very effectively.
There are currently a number of interesting cases pending before the courts on the issue of image rights protection in Kenya.
In US case of Jordan v. Safeway case the jury decided that Safeway — the parent company of now-defunct supermarket chain Dominick’s — must pay $8.9 million to Michael Jordan after using the basketball star’s name in an advertisement placed in Sports Illustrated. The above ad ran in a 2009 Sports Illustrated commemorative issue marking Jordan’s induction into the Naismith Memorial Basketball Hall of Fame. The ad includes a $2-off coupon for steaks. Jordan immediately filed suit claiming that his name and likeness was used in a commercial context without authorization. Although the Safeway suit is not new to the US where numerous publicity rights suits are filed, this suit is an important reminder that Coke’s likely defence that it was merely offering congrats may not necessarily absolve the brewer of liability if it is selling a product in the process.

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