IP Case Law library

Facts

Susan Njeri Wokabi and her son, M.W. (minor), (the Plaintiffs) sued Microsoft East Africa Limited and Muthoni Njoba (the Defendants) alleging unauthorised commercial exploitation of a photograph taken during a photoshoot at Wokabi's house on August 2, 2010. The photograph, featuring the minor's foot cradled in Wokabi's hands with body art, was used in an advertisement campaign for Microsoft's Windows 8 without their consent. Wokabi claimed that the photo was intended for private use, not for commercial purposes, and sought an injunction, declarations of privacy and property rights violations, damages, and just compensation.

The Defendants argued that they had acquired the photograph from an agency, which had obtained it from Njoba, a renowned body painter who also participated in the photoshoot. Njoba asserted that the photograph was meant to create a portfolio of images for commercial use and that Wokabi had consented to its use.

Issues

1. Whether the authorship and ownership rights to the photograph in question were held by the Plaintiffs?
2. Whether the Defendants infringed on the Plaintiffs' copyright?
3. Whether there was a violation of the Plaintiffs' right to privacy due to the use of the photograph in Microsoft's advertisement?
4. Whether the Plaintiffs were entitled to any damages or other reliefs?

Rule

• Section 31 of the Copyright Act governs the ownership of copyright, stating that the first ownership vests in the author, unless the work is commissioned or created under a contract of service.
• Section 32 of the Copyright Act provides moral rights to the author, which include the right to object to derogatory use of their work.
• Article 31 of the Constitution of Kenya guarantees the right to privacy, including protection against unauthorized use of personal information or images.
• Article 40 of the Constitution of Kenya protects intellectual property rights.

Analysis

Issue 1: Authorship and Ownership
Section 2(b) of the Copyright Act defines an "author" in relation to photographs as the person responsible for the composition of a photograph. While Wokabi and her son were the subjects, Njoba created the body art, and a third person took the photograph. The court concluded that Njoba, who conceived the idea and did the artwork, was the author. Consequently, the first ownership of the copyright vested in her.

Issue 2: Infringement of Copyright
The Plaintiffs claimed joint authorship; however, the court found that Njoba was the sole author, given her role in creating the concept and the artwork. The license agreement between Njoba and the agency, which then licensed the photograph to Microsoft, was legitimate. Therefore, there was no infringement of the Plaintiffs' copyright by the Defendants as their image was acquired in a valid manner.

Issue 3: Right to Privacy
The court examined whether the photograph's use breached the Plaintiffs' right to privacy. Wokabi had consented to the photograph being used by Njoba in various forums without prior objection, which constituted a waiver of privacy rights. Additionally, the photograph did not reveal any identifiable features of the Plaintiffs that could breach their privacy.

Issue 4: Damages and Reliefs
Given the findings on authorship, copyright, and privacy, the court determined that the Plaintiffs did not prove their case on a balance of probabilities. The Defendants acted within their rights under the legitimate license agreement, and there was no evidence of damages warranting compensation.

Conclusion

The court dismissed the Plaintiffs' suit, finding that Njoba was the rightful owner of the photograph's copyright, there was no infringement of copyright by the Defendants, and no violation of privacy rights occurred. The Plaintiffs were not entitled to any damages or reliefs, and the Defendants were awarded costs.

Judgement available here.