Following
in the heels of Al Hajji Nasser Sebagala versus MTN, H.C.C.S No. 283 of 2012 and Agaitano versus Uganda Baati,
H.C.C.S No. 298 of 2012 , 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.
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