Who owns the rights to a photo? The case of Wangechi vs Tecno

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The Copyright Board of Kenya may yet have another case on their hands. Wangechi, a Kenyan rapper, earlier in the week started a hashtag #TecnoComeClean after she discovered that Tecno was using her image in their campaign without her  knowledge or consent. In a video she explains that through her team she reached out to Tecno to sit down and clear up the issue, to no avail. She claims that they pulled down images and visuals after eight weeks of her image doing the rounds. She is speaking up not only to call out Tecno on their conduct but also to seek compensation, since they utilised her image for commercial purposes.

This is not the first case of its kind involving well known personalities suing companies or calling them out  for wrongful use of their images. In August last year, Julius Yego was in the headlines for his phenomenal throw at the World Championships in Beijing. East Africa Breweries Ltd (EABL),  jumped on the opportunity to capitalise on his fame and push their Tusker beer brand using the slogan ‘Yegold’. Yego took to his social media and disputed claims of association with the brand.

In the year 2014, Suzie Wokabi founder and CEO of Suzie Beauty sued Microsoft for using  pictures of her hands and son Maceo’s foot on the company’s billboards without her permission. In the midst of all that mess was the celebrated make up artist, Muthoni Njomba who had approached Suzie as a  model for her artwork. She found a professional photographer who captured pictures of her hands and son’s foot. When the case blew up, Njomba claimed that she had no idea that the photos were sold and that it was actually the photographer who  had the right to do whatever she wished with the pictures. Suzie Wokabi  not only sought compensation  for being used as a model but also a statement by Microsoft that her constitutional right to property was violated, bearing in mind her status in the society.

In the year 2012, three Harambee stars players moved  to court to sue East Africa Breweries Limited, over wrongful use of their images for advertisement. At the time  Dennis Oliech,  MacDonald Mariga and  Bob Mugalia  claimed  that the company used their pictures on a bill board without their consent which prompted them to seek legal redress. EABL on its part argued that it had signed a contract with Harambee Stars as a team and included clauses that allowed them as sponsors to use images of the national team players’ in their promotions.

All these cases have one bone of contention that is common, ownership followed by copyright.  According to kopiken.org, ‘Copyright arises automatically when a work that qualifies for protection is created’. The work must be original in that it needs to originate with the author who will have used some judgment or skill to create the work. As a general rule, the owner of the copyright is the person who created it that is the author. An author could be the writer, the composer, the artist, the producer or the publisher or another creator depending on the type of work.

The article goes on to say that, ‘the copyright owner has both economic and moral rights’. Economic rights cover acts that only the copyright owner can do or authorize. These include the right to copy the work, distribute copies of it, rent or lend it, perform or show it, communicate it to the public (including making it available online) or adapt it (e.g. making it into a play).

Moral rights (Section 32.1) on the other hand include the right to claim the authorship of the work, and object any distortion, mutilation or other modification of or other derogatory action in relation to the said work which would be prejudicial to the authors honour or reputation.’

In the case of Wangechi, the picture was taken by Ojwok Photography. This means that he owned the authorship and copyright of the picture. How the picture landed in the hands of Tecno was through a competition with the hashtag #see9seeKenya. As part of the competition, the competitors were to post pictures or videos that they felt best represented Kenya using the hashtag and share said pictures on Facebook, Twitter and Instagram. The top 3 would get the Tecno Camon C9  while one out of the top nine winners would get a gift hamper and have their picture showcased at the campaign.

Here now lies the complication. It looks like the photographer and Wangechi did not talk about what would happen to the picture after it was taken. Admittedly, it was wrong for him to use her image without her consent but then again it was his work and she happened to be a subject featured in the work. If you are to go through the copyright laws, it favours the photographer. Another sad reality is that once your image is on the internet there is no controlling how it will be used, who will access it and how much money will be made unless there was a prior documented agreement.

According to the blog IP Kenya, ‘no legislation exists anywhere in the world that is exclusively drafted for the protection of all aspects of someone’s image. In light of this gap, the protection of image rights remains largely a matter of contractual and/or constitutional interpretation, especially in Kenya. Therefore, it follows that disputes relating to the protection of image rights in Kenya may require some ‘judicial law-making’, as it were.’

Mwarv Kirubi, a photographer managed to settle his case with Land Rover out of court, after two months. Yego seems to have taken a similar route because just a month after his image was wrongfully used, various pictures of him appeared on EABL’s posters whereby he appeared to endore the brand. One can only hope that Tecno and Wangechi will be able to do the same and solve the case amicably before it gets out of hand.

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