Image Rights in Kenya

Public personalities who undertake speaking or other types of engagements and earn a living form them earn ‘image rights. This includes: former politicians, media personalities, actors and actresses, models, sportsmen and women like Kenyan athletes and ordinary Kenyan Citizens. The more popular the public person the higher their image rights and as a result the more likely they are to look for ingenious ways to earn their money in places where there are lower taxes or lesser controls in order to keep more of their money and not pay their fair share to the state they reside.

Any person who undertakes work such as footballers, will have two contracts one to play the sport or to act and another one usually under a company to hold the image or publicity rights.

Image rights include all areas of publicity that a public person in involved with however small or big and the payment they receive for it. It can be as complex as adverts or as small as a photo taken during a game and then used in the press.

In Proactive Sports Management Ltd. v Wayne Rooney & 3 Others [2010] EWHC 1807 (QB) the court gave a comprehensive and inclusive definition of what entails image rights:

“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, reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer generated representation 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 in Jessica Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Other [2017] eKLR where Justice Mativo defined image right as:

“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.”

Image rights allow a person to commercially exploit and protect his image from irregular exploitation. Image rights can be held by a natural person, juristic person, joint personality, group.

Image rights fall under the umbrella of intellectual property. In Kenya Image rights do not exist as protectable rights in themselves as there is no specific legislation protecting image rights in our country. A person, whose image rights have been infringed upon, therefore seeks legal recourse from various laws neighboring image rights. This is affected 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 right for lack of centralized laws on image rights.

Over the years, claims for violations of image rights have been brought under tort of 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. In passing-off the terms “business” and “trader” are widely defined and would include artists, all kinds of performers, professional sportsmen and the like.

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.

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. Unfortunately, the Kenyan position, with regards to image rights, is limited to personal image whereas image rights does not necessarily mean personal image.

The test that a 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 most important component in the materialization of these rights is the structure of the image rights-contract. The contract must first and foremost describe the parties involved. Corporates and individuals, whose image is to be used, are encouraged to have legal representation during image rights contract negotiations. A legal professional will advise on the type of grant of rights that can and should be issued.

One of the legal difficulties encountered, in practice, for commercial negotiations, tax and civil litigation is to obtain a reliable and independent valuation of the image rights involved. This is often decided based on the celebrity status of the individual.