Understanding Image Rights.

Over the years, image rights have been considered in sports law in as far as it relates to athletes’ brand management and endorsements. However, with advancements in technology, and social media changing ways of marketing and advertising, the commercial value of using images of well-known personalities/celebrities is increasingly on the rise. Additionally, the internet has changed the accessibility of images making them freely and easily accessible. This leaves room for exploitation and the likely infringement of rights not only of well-known personalities but also unsuspecting persons whose pictures can easily be accessed, and used for advertising often without their consent and sometimes without the realization of use for an extended period of time.

Image rights are known by different names and are subject to different legal treatments in different jurisdictions. They may be referred to as personality rights(EU) or publicity rights (US). The term image rights is commonly used in the UK and among other common law jurisdictions.¹

Simply, image rights are an individual’s proprietary right to their personality to prevent unauthorized use of things like their likeness and even things like their signature or biometric data.

More broadly image rights refer to,

‘Access to the services of the personality for the purpose of filming, television (both live and recorded), broadcasting (both live and recorded), audio recording; motion pictures, video, and electronic pictures (including but not limited to the production of computer-generated images; still photographs; personal appearances; product endorsement and advertising in all media; as well as the right to use the personality’s name, likeness, autograph, story and accomplishments (including copyright and other intellectual property rights), for promotional or commercial purposes including, but without limitation, the personality’s actual or simulated likeness, voice, photograph, performances, personal characteristics, and other personal identification.’²

Legal Protections for Image rights.

Protections for image rights vary from jurisdiction to jurisdiction. As it stands, there are no harmonized laws on image rights, either nationally, regionally, or internationally. As such, legal protections are derived from overlapping laws i.e copyright laws, human rights laws, and data protection laws. In the US, however, image rights are recognized under the right to publicity, a first amendment right intertwined with the right to privacy. This right protects against uncompensated commercial exploitation of a person’s (such as an athlete’s) likeness or identity. Every person, celebrity or non-celebrity, has a right to publicity – which in short, is the right to own, protect and commercially exploit one’s identity. “right of publicity” was coined by Judge Jerome Frank in 1953 in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.2, which for the first time affirmed that individuals (in this case, Major League Baseball players) possess a property right in their own images.³

French law on image rights is more comprehensive. The right to image is an attribute of personality and is protected under Article 9 of the French Civil Code and Article 8 of the European Convention on Human Rights (ECHR). Each individual has the exclusive right to his or her own image, and the use made may oppose its reproduction and dissemination. One’s image is considered to be an attribute of one’s personality and therefore an inalienable and unassignable right. Prior permission to use a person’s image, voice, and name must therefore be sought, irrespective of the place (public or private) in which the person is being filmed or photographed, or the number of people appearing on film, if the person is identifiable (by his/her characteristics, but also by the context, décor or markings such as tattoos for example). Consent must be express, specific, and in writing, providing details such as duration, territories, and usage. Consent may be given free of charge or in exchange for compensation but may only be given for a “reasonable term” (usually 2 or 3 years as no one is authorized to disclose or exploit an image of any person without their agreement). French law grants each individual the exclusive right to their image and to who uses their image.⁴

Image Rights in Kenya.

The commercialized use of images is fast growing in Kenya, with various sectors leveraging the use of images to boost their marketing and branding strategies. As a result, more people are now more open and aware of their image rights, which have been characterized by the increase in court cases arising as a result of the unauthorized use of images for commercial gain and purposes.

Much like other jurisdictions, Kenya has no specific laws that provide for protections on image rights. Protections are derived from overlapping legislative instruments primarily, the constitution of Kenya under Articles 28, 31, and 40 (the right to human dignity, the right to privacy, and the right to property) the attribution of these rights relating to the image rights was clearly brought out in the case of, Ann Njoki Kumena v KTDA Agency Limited [2019] eKLR, where the court determined that the defendant was in breach of the plaintiff’s constitutional rights when they used the plaintiff’s image in their marketing brochure without the plaintiff’s knowledge or consent.⁵

Other protections are derived from copyright law and with the inception of the Data Protection Act in 2019, data protection laws. Notably, over the years, claims for violations of image rights have been brought under the tort of passing off. Passing off happens when there is a deliberate and unintentional representation of their goods or services belonging to another party. Concerning image rights and passing off, a person is said to have suffered injury when damage is visited upon his goodwill from a misrepresentation that he has endorsed another business or its products.⁶

Although there are no specific legislations that provide for image rights, courts have been of guidance in providing precedents in identifying violations of these rights. In Kenya, image rights were more distinctly discussed in the case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR where the respondent used the petitioner’s image on its billboards to advertise reconstruction and plastic surgery without the petitioner’s consent. The respondents continued to financially gain from using the petitioner’s image to promote their work. In the case, the court noted that personality rights consist of two types of rights. The right to privacy and the right to publicity where the right to privacy is the right to keep one’s image and likeness from exploitation without permission or compensation and applies to members of the general public, whereas, the right to publicity is the exclusive right of an individual to market his /her image, likeness or persona for financial gain.

This case also provided key elements for establishing a successful claim for unlawful use of a name or image. The three elements that must be met are

• Use of a Protected Attribute: this is the use of an aspect of a person’s identity that is protected by the law. This ordinarily means a person’s name or likeness. Notably, the law protects certain other personal attributes as well. (i.e Data protection laws include personal data).

• For an Exploitative Purpose: the use of the name, likeness, or other personal attributes for commercial or other exploitative purposes. The use of someone’s name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the identity and a matter of legitimate public interest.

• No Consent: establish that a person did not give permission for the offending use.

Although the case was dismissed because the third element was not met, it set the precedent of determining a violation of image rights.

More recently the case of Catherine Njeri Wanjiru Vs Machakos University H.C. Pet No. E021/2021 addressed image rights where the University of Machakos used Cathrine’s photograph in advertising and marketing of courses offered by the University without her consent or knowledge. In this suit, Cathrine sued the university among others for the violation of her right to property through the publishing of her image and likeness for commercial gain with no personal financial gain by her. The court in making its decision noted that a person’s image constitutes one of the chief attributes of their personality and that the person has a right to protect their image.

Further, the right to the protection of one’s image presupposes the individual’s right to control the use of that image, including the right to refuse its publication. Ultimately, the court found that Cathrine’s right to privacy, right to dignity, and right to property had been infringed by the non-consensual publication of her photograph. Catherine received compensation in nominal damages for Kshs. 700,000.00.⁷ More importantly, the court noted the dual nature of image rights i.e the right of privacy, being the right to prevent the commercial exploitation of one’s image, and the right of publicity, being the right to financial gain/compensation from the use of one’s image.

Similarly, in the more recent case of Shilmo Mwangi Kuria vs the University of Kabianga, the court had to determine whether the university of Kabianga, violated Shilmo’s fundamental rights to privacy and human dignity by publishing his image for purpose of commercial advertisement without his consent and, a violation of image rights (right to publicity and personality rights). The court in this matter, much like the case of Cathrine Wanjiku, found that the petitioner’s fundamental rights to privacy and human dignity as provided in the constitution were violated by the act of publishing his image without express consent. Notably, the case of T.O.S vs Maseno University and 3 others in 2016 held that the publication or use of images of an individual without his consent violates that person’s right to privacy as a person’s life is a restricted realm in which only that individual has the power of determining whether another may enter and if so when and for how long and under what conditions. In Shimlo’s case, his petition was successful and he was awarded Kshs. 500,000.00.

Image Rights and Data Protection

With the adoption of the Data Protection Act, image rights are also viewed through a data protection lens, primarily because image rights intersect with elements of the right to privacy when considered in terms of personal data. This aspect was investigated in the case of Catherine Njeri Wanjiru Vs Machakos University H.C. Pet No. E021/2021 where the court in determining elements of the case noted the application of the Data Protection Act in fully considering the right to privacy and the use of images. The court considered,

• the meaning of data, establishing that images and photographs within the context in which the university took and stored images amounted to data under the Act.

• The definition of an identifiable natural person and elements that consists of an identifier per the act, establishing that the petitioner was indeed an identifiable person The court considered.

• The rights of a data subject under section 26, establishing the right over the use of their data in this case the photographs the university took.

• The duties and responsibilities of a data processor under section 29, establishing that the university was a data controller and processor and the responsibilities it has in ensuring data subjects are aware of the processing and use of their data.

These elements demonstrate the intersection of image rights and data protection rights and the protections that can be established under data protection laws.

Summarily, as more people become aware of their image rights, the commercialized use of images continues to be an area that must be legislated upon. Precedence sets a defined tone for remedies available for the infringement of image rights and further defines the context within which image rights should be considered in Kenya, that is, in duality, so as to capture both the right to privacy and the right to publicity.

Image is from pexels