Copyright and Image Rights: Case of Wangechi vs Tecno
- Victor Nzomo |
- September 2, 2016 |
- CIPIT Insights
— WANGECHI (@wangechikenya) August 31, 2016
Wangechi, an upcoming Kenyan rapper (and Strathmore alumna), recently started a hashtag #TecnoComeClean to expose mobile device maker Tecno for using her image in their advertising campaigns without her knowledge or consent. In the video captioned above, she explains that her attempts resolve the matter with Tecno had not been successful thus far. Interesting, it appears that Tecno has since pulled down images of her after several weeks of her image being used for commercial purposes.
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</a> on the issue of image rights protection in Kenya.
Not surprisingly most of the coverage of Wangechi’s case confuses and conflates issues of copyright and image rights. As stated above, Kenya does not have a legal system to protect image rights as is the case with copyright. This begs the question: how should Kenya’s legislature address the protection of image rights. One option is to go the Guernsey route. In 2012, the Bailiwick of Guernsey became the first jurisdiction anywhere in the world to introduce a registration system for image rights. The Image Rights (Bailiwick of Guernsey) Ordinance (IRO) 2012 facilitates for the first time the registration of personality and any image rights (including rights in characteristics, mannerisms or traits) unique to that personality. The ability to carry out such a registration and obtain a property right in one’s image is a watershed and allows one to effectively register and protect one’s personality and image rights as a matter of public record for the first time. With this registration, the appropriation by others of a Registered Personality or associated characteristics, for unauthorized economic benefit may give rise to statutory infringement proceedings under the IRO.