Thursday, 28 April 2016
A pronouncement on image rights in Uganda – finally.
Following in the heels of Al Hajji Nasser Sebagala versus MTN, H.C.C.S No. 283 of 2012 (see here) and Agaitano versus Uganda Baati, H.C.C.S No. 298 of 2012 (see here), the High Court has come out in Asiege v. Opportunity Bank (U) Ltd & Maad Ltd H.C.C.S No. 756 of 2013, to set a precedent on image rights in Uganda, carefully steering away from the law of Copyright.
In the Sebagala case of 2012, the plaintiff sued MTN claiming that the defendant had used his voice in creating call/ring tunes without his authorization. Although it was apparent that it was his voice on the call tunes, as Justice Madrama rightly held, the Plaintiff did not own copyright to the creativity. This is because he was not the author of the call tunes. Nonetheless, the case left ordinary folks puzzled as to how different persons can gain from an individual’s personality and still get away with it. In the various classes that I teach copyright law, the issue that resonated with everyone was as to whether Sebagala would have had a better case if he had avoided relying on copyright law and sued for unfair enrichment derived from his image rights. There are no clear legislative provisions that can help one establish a claim in that category of rights. Some have been arguing that celebrities have a better right to their images than ordinary Toms, Dicks and Harrys. Others argue that even a non-celebrity should have the right to stop anyone from using his or her image for personal gain. Agaitano as opposed to Sebagala (a Ugandan celebrity in his own right), is such an ordinary person. He sued his employer, Uganda Baati Ltd, for using his image on their brochures and other promotional material. But, just like Sebagala, he too lost the case because he was not the author of the expression of the work. Agaitano had actually been informed by his employer that they would be taking pictures of staff members for promotional purposes. These two cases clearly spelt out that copyright law and image rights are not necessarily the same thing.
In comes Asege Winnie v. Opportunity Bank (U) Ltd & Another, H.C.C.S No. 756 of 2013. In this case, the matter of image rights in Uganda has been put to rest. Briefly, the plaintiff sued the defendant for using her image in large promotional billboards, advertising flyers, brochures and calendars that the Bank used in different parts of the country. Her claim was for a breach of her constitutional right to privacy, passing off, misrepresentation and false endorsement, breach of confidence and unjust enrichment in the unauthorized use of her image.
She argued that she had never commissioned or licensed the defendant to use her image on their promotional materials and that the same was obtained without her authorization hence invading her constitutional right to privacy. The Bank denied the Plaintiff’s claim and stated that it obtained her images from the second defendant (a third party in the proceedings) whose professional services had been sought as an advertising company. Maad Limited, on its part, claimed that it lawfully obtained the plaintiff’s photo images from an internet based website known as Shutter Stock Inc as well as from the New Vision Printing and Publishing Company Ltd. The Plaintiff rebutted these arguments by pointing out that the New Vision and Shutter Stock Companies did not acquire any copyright in her image because when the picture was taken, it was for a single usage only and not transferable for recurrent usage.
Justice Henry Adonyo pointed out how the issue of image rights is a grey area in Uganda hence the reliance on common law principles of personality rights. He opined that publicity rights fall under the tort of “passing off” with the notion that every individual should have a right to control how, if at all, his or her “persona” is commercialized by third parties who intend to help propel their sales or visibility based on such product or services. In his wisdom, basing on the common law jurisprudence, Justice Adonyo established three basic elements that have to be present for one to succeed in an action for infringement of image rights:
a) The Plaintiff must be identifiable.
b) The defendant’s action was intentional.
c) The defendant must have acted for the purpose of commercial gain.
In addressing these elements, Justice Adonyo navigated outside of copyright law in stating that the Plaintiff’s claim is not established under the Ugandan copyright Statute but under a common law remedy resulting from the unlawful use of her image.
Relying on evidence adduced during the court proceedings, all three elements were proved to the satisfaction of court. As for the third element, it was also evident that the plaintiff’s image was used by the Bank to promote their so called “Agro Save Account” hence commercial promotion.
Justice Adonyo concluded by asserting that “every individual has a right to his/her personality which extends to the name of the individual and image and has a right to control the use of either.” The Defendant and Third party were thus found to have infringed upon the Plaintiff’s image rights and damages, totaling 150,000,000 (One hundred and fifty million Uganda Shillings) were awarded in her favor. Corporations and individuals will now think twice before unauthorized usage of other people’s images.