Image rights as Intellectual Property. A case for Influencer marketing in Kenya

Images are a key component in most social media networks and, with the rise of the use of social media, the issue of image rights and how they can be protected as intellectual property is a conversation that cannot be avoided. Specifically, images have been used by commercial enterprises as a marketing tool, predominantly images of influential people whom the businesses believe would drive traffic to their businesses’ social media pages or websites and convert into sales. In fact, marketing literature suggests that the magnetism of the individual and the perceived financial benefit resulting from that encourages such collaborations.

With the growing use of influencer marketing, the notion of the identity, image or personality of a person as a property right continues to be cemented. Unfortunately, Kenya lacks a robust legal framework governing the administration of image rights. Without this, image rights owners are exposed to exploitation while consumers themselves are victims to deceptive marketing schemes. In the United States, the personality or identity of an individual is generally protected against unauthorized appropriation under the Right of Publicity Doctrine. As McCarthy and Schechter put it, the right of publicity is the inherent right of every human being to control the commercial use of his or her identity.

This article interrogates the legal framework in Kenya regarding image rights in the influencer marketing space and whether the legal framework is sufficient to protect image rights.

Definition of image rights

In the case of Von Hannover v. Germany (no. 2), Grand Chamber judgment of 7 February 2012, the Court defined image rights as follows: “a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers.” The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.

 

In Proactive Sports Management Limited Vs. Rooney & Ors Lady Justice Arden [2011} EWCA Civ 144, the Court defined image rights as a term used to describe rights that individuals have in their personality, which enables them to control the exploitation of their name or picture. The Court expressly highlighted the economic value of image rights and emphasized that image rights should be fully realizable for this economic purpose.

Further, Judge Neville held in Uhlander Vs. Henricksen held that: “A celebrity has a legitimate proprietary interest in his public personality. A celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics and other characteristics, is the fruit of his labors and is a type of property.”

Kenyan courts have held a  coordinate position in terms of defining image rights as was the instance in Jessicar Clarise Wanjiru Vs. Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR where the court defined image rights thus:

“In simple terms, image rights refer to a person’s right to commercialize 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.”

Further, in the US case of  Jessicar Clarise  , the Court, referring to image rights, stated that the right of publicity or personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity.  Further, that it is generally considered a property right as opposed to a personal right.

Legal framework governing image rights in Kenya

There is no statutory legal framework specifically governing image rights as intellectual property in Kenya. As such, Courts in Kenya have resulted to the common law tort of passing off when adjudicating on image rights dispute. Personality or image rights are generally considered to consist of two types of rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the not have one’s personality represented publicly without the image owner’s permission. The right to privacy is enshrined in the Constitution of Kenya under article 31.

In common law jurisdictions, the commercial aspect of publicity or image rights falls into the realm of the intellectual property tort of passing off. The infringement of image rights has in other instances be found to be under the ambit of the tort of misappropriation of property. The tort of misappropriation of personality was first introduced in Canada in the case of Krouse v. Chrysler Canada [1974] 1 O.R. (2d) 225. The tort can be expressed by stating that every individual has an exclusive right to market, for financial gain, their personality, image and name, and that the law entitles an individual to protect that right, if it is invaded. Under that case, the tort of misappropriation of personality can be invoked when all of the following four elements are met:-

1. There is an element of commercial exploitation of a person’s personality. There must be a sufficient link between the individual and the exploiting medium to establish that the plaintiff’s personality was “used” for the defendant’s commercial gain.
2. The person is clearly identifiable in the medium used and to their respective community or communities.
3. The person does not consent to the use of their personality.
4. Damages, either emotional or financial losses, are proven (although recent judicial rulings would indicate the right of privacy is recognized even in the absence of damages).

The aforementioned Canadian case was adopted in Kenya in the case of N W R & another Vs. Green Sports Africa Ltd & 4 others [2017] eKLR where the petitioner succeeded against a betting company which had used the minors’ images on a billboard without their consent. The court in this matter used the following three principles in making its judgement:

1. Use of a Protected Attribute: the law protects certain other personal attributes as well, and can step in to protect the personality depicted by certain images.
2. For an Exploitative Purpose: a person’s image should not be used for commercial or other exploitative purposes unless for legitimate public interest.
3. No Consent: a person must establish that he or she did not give permission for the use which in certain circumstances may be offensive.

In other cases, the infringement of image rights has been found to be an infringement of the constitutional right to privacy as was seen in the case of  Rukia Idris Barri Vs. Mada Hotels Ltd (2013) eKLR. In this case, the defendant used a photo that it had taken of the complainant when she was a trainee at the defendant’s establishment to advertise the establishment. The plaintiff had only consented to her photo being used from 1997 to 1998 yet the photo was published in a popular magazine in 2011 without her knowledge or further consent. The Court agreed that her right to privacy and dignity were interfered with by the defendant .

 

In other jurisdictions, the infringement of image rights has been found to be interrelated to the right to human dignity. As the South African court authoritatively put it in the case of O’Keeffe Vs. Argus Printing & Publishing Co Limited and Another 1954 (3) SA 244 (C):-

“… The unauthorized publication of a person’s photograph and name for advertising purposes is in my view capable of constituting an aggression upon that person’s dignitas. It is not necessary for me in the present case to hold, and I do not hold, that this is always so. Much must depend upon the circumstances of each particular case, the nature of the photograph, the personality of the plaintiff, his station in life, his previous habits with reference to publicity and the like. … “

Loopholes and recommendations in the protection of image rights in Kenya

There is a need to enact a robust framework for the protection of image rights as property with commercial value as, from the above analysis, the image of a person is an intangible asset with commercial value. The legal framework in Kenya is currently not sufficient to cover image rights since there is no specific framework and owners of image rights can only rely on case law to protect the property embodied in their images. As Beverley- Smith suggests, “the increasing commodification of the human image demands that any modern classification of interests in personality should take account of the fact that a person’s name or features are also valuable economically. As Locke said, everyone has “a property in his own person”. It is therefore indisputable that a person’s image is their property.

 

Consequently, it is clear that there is a need to protect image rights in Kenya. In addition to earning image owners much-needed revenue, a robust legal and policy framework would create predictability in how the disputes relating to image rights infringement are adjudicated.

Such a legal framework should include an image rights registration regime. An example of a state that has implemented the registration of image rights is Guernsey, one of the UK Channel Islands, who in 2012 of established the world’s first image rights registry. In doing so, the Guernsey authorities made it possible to, in that country, codify personality and image rights into a fully functioning form by registering them Interestingly, the registry also allows for the registration of a huge range of acts, including gestures, mannerisms and voice files, to name but a few

We are of the view that the Kenyan government should adopt the Guernsey image rights registry model, haps within the ambit of the Kenya Copyright Board or the Kenya Industrial Property Institute.

In establishing such a registry, the Kenyan government should consider the following  additional reasons for registering image rights:

1. To place the image rights within a holding structure that can licence these rights as part of a commercial enterprise.
2. As part of inheritance and legacy planning. Some individuals have companies that hold the rights and receive image-related income as part of their pension planning.
3. Part of a collective of individuals whose income-related earnings are managed by a club or agent.

 

Conclusion

From the foregoing, it is clear that image rights are an intangible asset that carry with them economic value. Further, with the rise of influencer marketing, image rights have become an integral part of determining the rates of influencers based on their popularity. Although Courts have resulted into common law torts in determining cases of infringement of image rights, there is a need to legislate on image rights and to provide a registration system as has been done in Guernsey.