An interesting discussion on copyright protection of image rights in sports is taking place on IP Kenya. I would venture to say a proposed amendment to Kenya’s Copyright Act, as Kenya IP suggests, might not be necessary. A modification of existing state laws to include a ‘Right of Publicity’ might just do the trick much the same way that we have here in the USA. However, it is an interesting debate and one that will ultimately take place in Nigeria and Ghana down the line. Read on . . .
“IPKenya recently attended a seminar on Intellectual Property and Sports in Kenya co-organised by the Kenya Industrial Office KIPI and the Kenya Copyright Office KECOBO held in Nairobi. During the two-day seminar, several distinguished speakers from academia, legal practice and sports engaged us in a variety of interesting topics including: marketing, merchandising and licensing agreements and building successful sponsorship programmes, media and broadcasting rights, signal piracy, digital content and social media, sports contracts and key clauses to look out for, administration and enforcement of IP rights in sports and finally building an effective IP rights strategy in sports.
There was a lot of robust debate and discussions on these issues but there was one particular topic that IPKenya feels deserves special mention and examination. This is the intersection between intellectual property and image rights in sports.
Consider the recent case of Kenyan footballer Dennis Oliech who claimed his image rights had been violated and quit the national team, Harambee Stars.
The above photograph of Dennis Oliech, McDonald Mariga and Bob Mugalia celebrating after Stars scored their winning goal against Angola in a 2012 Africa Cup of Nations qualifier at Nyayo National Stadium.
This photo was altered slightly then used by East Africa Breweries Ltd (EABL), the current sponsor of Harambee Stars, in advertisements throughout Kenya including several road-side billboards.
AJ Auxerre striker Dennis Oliech, Parma midfielder Macdonald Mariga and locally based Sofapaka FC player Bob Mugalia demanded to be paid by EABL for using their images to run promotions for the team.
EABL declined and relied on the KES 110 million sponsorship deal with the Harambee Stars Management Board. Clause 9 of the agreement stated that the sponsor shall have the right “to use the images of members of the Harambee Stars team for promotional and advertising activities”
It was not in dispute that EABL had a group agreement with the entire Harambee Stars Team in respect of image rights, but can this agreement be relied on where certain players are singled out their images used in advertisements? In the present case, is EABL right to argue that the three players pictured represent the entire team so as to preclude EABL from entering into separate agreements for image rights with each of the three players? The players argued that EABL should have been required to seek their consent individually before using their image. In the absence of such consent being sought, EABL is in breach of their image rights and must pay them compensation.
The issue that arose during this discussion was that there is no single source of law that recognises image rights. The closest recognition is in the Copyright Act which defines artistic works to include photographs and recognises a photographer or a third party (in the case of a commissioned work) as the copyright owner.
IPKenya was however persuaded that the easiest way to provide for statutory recognition of image rights was to amend the Copyright Act.”
Kenya IP has the full story.
Photocredit: Kenya IP