IP Case Law library

Facts

Wangechi Waweru Mwende, a renowned Kenyan singer and songwriter, filed a lawsuit against Tecno Mobile Limited for using her image and likeness without consent in a social media campaign tagged #ssee9seekenya from July 7-20, 2016. Mwende argued that this unauthorized use infringed on her constitutional right to privacy and her personal rights, asserting she neither consented to nor submitted her photographs for the campaign. Tecno countered that the usage was consensual, not aimed at commercial gain, and immediately ceased the campaign upon Mwende's objection.

Issues

1. Whether the plaintiff's claim of the image and likeness published online amounts to infringement of their right to privacy.
2. Whether the defendant's claim that the copyright owner and author of the plaintiff's image is Ojwok Photography and whether they should be joined as a 3rd party to the proceedings.

Rule

Issue One

Section 33(4) of the Copyright Act - a non-exclusive licence to do an act the doing of which is controlled by copyright may be written or oral, or may be inferred from conduct, and may be revoked at any time, but a licence granted by contract shall not be revoked, either by the person who granted the licence or his successor in title, except as the contract may provide, or by a further contract.

Jessica Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR - sets the threshold of proving a claim of the right to economic gain for use of one's image and likeness:

• Use of protected attribute - the Plaintiff must show that the Defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff's name or likeness, but the law protects certain other personal attributes as well.
• For an exploitative purpose - the Plaintiff must show that the Defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. 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 plaintiff's identity and a matter of legitimate public interest.
• No consent - the Plaintiff must establish that he or she did not give permission for the offending use.

Section 106(B)(4) of the Evidence Act (Cap 80) - in any proceedings where it is desired to give a statement in evidence by virtue of the Act, a certificate purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or activities shall be evidence of any matter stated in the certificate, and it shall be sufficient for a matter to be stated to the best of the knowledge of the person stating it.

Section 35(5) of the Copyright Act - where in an action for infringement of copyright it is proved or admitted that an infringement was committed and, at the time of the infringement, the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work to which the action related, the plaintiff shall not be entitled to any damages against the defendant in respect of the infringement, whether or not other relief is granted.

Issue Two

Section 2 of the Copyright Act - copyright is the original work of visual art created by an artist or produced under authority, and it includes photographs.

Section 32(1) of the Copyright Act - moral rights of an author include the right to claim the authorship of the work, and the right to object to any distortion, mutilation, or other modification of or other derogatory action in relation to the said work which would be prejudicial to his honour or reputation.

Section 33 of the Copyright Act - modes of assignment and licences of a copyright: copyright shall be transmissible by assignment, testamentary disposition, or by operation of law as moveable property; an assignment of copyright may be limited so as to apply only to some of the acts which the owner has exclusive right of control over; no assignment of copyright shall have effect unless it is in writing and signed by or on behalf of the assignor or by or on behalf of the licensor, and the written assignment shall be accompanied by a letter of verification from the Board in the event of an assignment of copyright works from outside Kenya.

Analysis

The court found that Mwende did not consent to the use of her images in Tecno Mobile's campaign. Despite Tecno's claims of non-commercial use, the promotional context suggested otherwise, aiming to enhance the company's brand visibility. The evidence confirmed that Tecno used her image to attract more attention to their campaign, leveraging her celebrity status. The court dismissed Tecno's defense that the use was consensual based on vague assumptions of consent from social media interactions. Additionally, Tecno's counterclaim of defamation was not upheld due to insufficient evidence of malice or falsehood in Mwende's statements, which were deemed a legitimate expression of her grievances over her image's unauthorized use.

The judgement emphasises the importance of consent in the use of a person's image for promotional purposes. It underscores the need for businesses to obtain explicit consent from individuals before using their likeness in advertising, thereby respecting individual rights and adhering to privacy laws. Additionally, the decision highlights the challenges artists face in controlling the use of their images and the necessity of legal protections against unauthorised uses.

Conclusion

The court ruled in favor of Mwende, granting her damages for the infringement of her right to privacy, quantified at Ksh 500,000. It dismissed the copyright claim, indicating that the claimant could not prove that the third party had any legitimate claim to the copyright. Tecno's counterclaim for defamation was also dismissed.

Judgement to be found here.