Legislate on image rights

Legislate on image rights

By Daniel Benson Kaaya

The Premier League is arguably the best in the world – attracting the best players and managers in the game. The summer transfer window closed on August 8 but not without some nail biting moments for fans across the world. One of the most intriguing transfers concerned Argentine maestro Paulo Bruno Exequiel Dybala’s proposed move to Tottenham Hotspurs from Juventus FC. In spite of protracted negotiations running into the final hours of the transfer window, the transfer did not materialise. 

Fees and wages weren’t the issue as is the norm with other transfers; it’s Dybala’s image rights that were the problem. The question demands an understanding of image rights. 

In ‘Proactive Sports Management Ltd v Wayne Rooney & 3 Others’ [2010] EWHC 1807 (QB) where Wayne and Coleen Rooney’s former representatives were seeking unpaid commission and invoices ranging  between £1-3 million and over £200,000 against the two respectively, the Court gave a comprehensive and inclusive definition of what entails image rights at paragraph 187:

“Image Rights mean the right for any commercial or promotional purpose to use the player’s name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the Player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/or any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights.”

Kenyan courts have held coordinate position in terms of defining image rights as was the instance in ‘Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others’ [2017] eKLR where, at paragraph 17, Mativo J defined image rights thus: 

In simple terms, image rights refer to a person’s right to commercialise aspects of his personality such as physical appearance, pictures or caricatures, signature, personal logos and slogans, and also the right to prevent other people from commercially making use of them.” 

In addition, in their book ‘Football in the New Media Age (2004)’, Raymond Boyle and Richard Haynes define image rights as “…the commercial appropriation of someone’s personality including indices of their name, images, voice and signature…”

Image rights allow a person to commercially exploit and protect his image (in the broader sense as in the Rooney’s case) from irregular exploitation. Notably, image rights can be held by a natural person, juristic person, joint personality (where two or more natural or juristic persons are generally recognized as intrinsically linked for a particular purpose and who jointly form a joint personality – mostly a trio or a duet), a group (where two or more natural or juristic persons are generally recognised as linked for a particular purpose and thus forming a group or a team).

Image rights fall under the umbrella of intellectual property. There is no specific legislation protecting image rights in Kenya, however, which in effect means that image rights do not exist as protectable rights in themselves. A person, whose image rights have been infringed upon, therefore seeks legal recourse from various laws neighbouring image rights. This is effected by invoking the law in relation to passing off and privacy and generally conventional intellectual property rights.

In the world of sports and general entertainment industries, personalities with valuable images are advised to protect their images by use of conventional intellectual property rights for lack of centralised laws on image rights. In other jurisdictions, real people have image rights merely by existing—you do not need to be a celebrity. The rationale for the latter is perhaps best explained by Mativo J in paragraph 27 of ‘Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others’ (supra) to the effect that image rights in general consist of  the right to privacy and the right of publicity. This is in the sense that the former is the right to protect one’s image and likeness from malicious or uncompensated exploitation and generally applies to members of the general public whereas the latter is the exclusive right of an individual to market his or her image, likeness or persona for financial gain.

Over the years, claims for violations of image rights have been brought under the tort of passing off. Concerning image rights and passing off, a person is said to have suffered injury when damage is visited upon his good will from a misrepresentation that he has endorsed another business or its products. Normally, in passing-off, the terms “business” and “trader” are very widely defined and would include artists, all kinds of performers, professional sportsmen and the like. All these have goodwill in relation to their paid professional performances, and those who have an income from merchandising or endorsement have goodwill in relation to those activities as well. However, this limits image rights to the right to privacy and excludes the right of publicity thus, rendering the tort of passing off as a tool for claiming compensations for violations of image rights functionally ineffective.

In a world where components of image rights have become merchandises it is necessary to legislate thus rendering certainty in this province of law.

On the opposite, some jurisdictions have ably legislated on image rights. A notable legislation on image rights is the Image Rights (Bailiwick of Guernsey) Ordinance, 2012. The Ordinance not only provides for representations of the personality that are registrable but also the characteristics that make up the personality. Thus the legislation confers certainty in the whole concept of image rights and also protection thereof through registration.

Image rights confer upon a person both monetary advantage and also human right protection. Advertisements in Kenya have become the main area of exploitation of image rights. Some of these advertisements infringe upon the image rights of the concerned persons. The latest brewing court battle pits Victor Wanyama Spurs midfield powerhouse and Michael Olunga the Kashiwa Reysol forward with Menengai Oil Refineries for alleged use of their images without their consent. The rise of this kind of legal action therefore demands necessary calibration of the scope of image rights and consequently competent legislation of the same.

A claim for infringement of image rights normally seeks damages for the use of their personal image: the “misappropriation of personality” and the “passing off” of personality (Mativo J [supra]).  The scope is notably shallow—it is limited to personal image whereas image rights does not necessarily means personal image. Thankfully, the courts have tried to fill the lacunae in this unpopular province of law in respect of the test one should meet in order to successfully claim. At least, this helps a claimant to attune his claim to the test.

The test is that the claimant has to prove that the defendant has used an identity protected by law; the defendant used it for commercial or other exploitative purposes; and without the consent of the claimant. The question arises from the first facet of the test that a claim should stem from an infringement of a protected attribute. However, there is no specific law that demarcates which attribute is protected and which is not. Our courts therefore, heavily borrow from other jurisdictions in order to determine claims on image rights.

It is necessary to have a centralised law on image rights demarcating the scope and enforcement of image rights. In a world where components of image rights have become merchandises it is necessary to legislate thus rendering certainty in this province of law.

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