Ann Njoki Kumena has been awarded Ksh. 1.5 million in damages after KTDA used her image in a brochure without her permission. She was awarded the amount after the suing the company in the High Court.
Ann contended that the company photographed her without her consent and thereafter unlawfully used the same picture in a marketing brochure titled KENYA TEAS: SPECIALITY TEAS. She claimed that they did so not only without her consent but also without compensation.
The company in its part responded by saying that she wasn’t entitled to compensation because she didn’t have have royalty rights to the picture because she didn’t own the copyright to the image. They also denied that she was the subject in the image in question. They further added that because she voluntarily posed for the picture so she had not suffered any loss/damage nor had her fundamental rights been infringed upon.
The court however disagreed and in the ruling the court said that:
1) The plaintiff is entitled to declaration that the defendant’s conduct amounts to infringement of the plaintiff’s right to privacy and protection from deprivation of property without compensation.
2) The plaintiff is entitled to damages.
3) I award the plaintiff Ksh.1,500,000/= general damages for the violation of her rights.
4) I award the plaintiff the costs of the suit and interests.
The judgement was delivered by judge L. W. Gitari sitting in Kerugoya.
In such cases, where photographs are used for a commercial nature, it is normal for companies to contact the people in the images and compensate them. Additionally, the owner of the photograph (photographer) has a copyright on them and is entitled to compensation. Such photos are protected and recognized under copyright law (the Copyright Act of 2001, CAP 130, Laws of Kenya). Copyright is the right accrued from the expression of an original idea.