In April 2019, Ugandan jetsetter and celebrity, Sheila Gashumba, was engraved in a bitter fight over image rights with La Paronis, one of the hottest Kampala Sunday Hangouts, for uploading her photos on their social media pages without her permission.
The photos had been taken during Laparoni’s Sunday Funday theme night.
Gashumba through her lawyers noted that this was resulting in a loss of money for her as LaParonis made it appear like an endorsement.
Time and again when you move around major towns or highways you will see huge billboards raised with various advertising images of people.
Similarly, with the advent of web-based business models, there is rigorous advertising using web platforms especially websites and social media.
These businesses use images of famous people especially to attract customers/clients.
However, the source of these images varies, for instance, some are downloaded from the internet especially of famous or rich people, others are taken directly during functions or working times just like in the case of Sheila Gashumba.
As a new start-up or web developer, it is very easy to get the urge to use someone’s image either for personal benefit or for commercial enterprise, but have you ever stopped and wondered whether you had to seek the consent of the owner of that image before you appropriate it?
Most answers would be, nay, and of course for several reasons, but from the legal perspective there is a positive realization of the fact that image rights may not be rights at all or protected under our laws.
The inner feeling that there are no such rights in the first place and hence no violations.
Indeed in Uganda, there is no specific “image rights” law as such, but these rights can be construed from other human rights enshrined under chapter four of the Constitution of the Republic of Uganda, 1995.
This is simply because the legal regime as regards image rights has not been largely explored hence little jurisprudence from our jurisdiction both statutory and or by way of precedent.
Other jurisdictions like Quebec have laws that safeguard personality rights.
3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of this person, and the right to the respect of his name, reputation, and privacy.
36. The following acts, in particular, may be considered as invasions of the privacy of a person:
3) Appropriating or using his image or voice while he is in privates premises;
5) Using his name, image, likeness or voice for a purpose other than the legitimate information of the public;
6) Using his correspondence, manuscripts or other personal documents.”
Even here in Uganda, although we don’t have a legal regime that addresses image rights it does not mean persons who suffer wrongs cannot seek redress from courts.
For instance, Hon. Justice Peter Adonyo stated in the case of Asege Winnie v. Opportunity Bank (U) Ltd & Anor that:
“The mere lack of a legal regime in our jurisdiction that addresses the question of image rights cannot be taken to mean that persons who suffer wrongs cannot seek redress from courts of law when in fact they are aggrieved.”
WHAT ARE IMAGE RIGHTS?
Image rights are the expression of personality in the public domain. In simple terms, these are personality rights.
The court in the Asege case (above) described this personality right as follows:
“Under the common law jurisprudence, a personality right is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. This right to personality is classified into two categories;
- the right of publicity or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation and the right to privacy, and;
- the right to be left alone and not have one’s personality represented publicly without permission.”
Accordingly, in the United Kingdom, the famous singer Rihanna sued Topshop, for violating her image rights when it used her image to make a t-shirt.
The court of Appeal of England and Wales found that the sale by Topshop without her permission amounted to passing off, misrepresentation and was therefore unlawful.
Similarly, in the Canadian case of Krouse v. Chrysler Canada ltd, it was stated that where a person has marketable value in their likeness and it has been used in such a manner that suggests an endorsement of a product then there is a ground for action in the appropriation of such a person’s personality.
This would, therefore, suggest that such a person bringing a claim for violation of image rights must have “marketable value” otherwise their claim may not stand.
THE WINNIE ASEGE CASE.
The plaintiff, Winnie Asege, in that matter was stated to be a successful commercial farmer in the Soroti district and operating under Dakabela Rural Women Development Association.
She brought the suit against Opportunity Bank for 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 when Opportunity Bank used her image on huge billboards showing her as heartily laughing and holding a bountiful harvest of oranges in her hands with a caption “save for your success with the Agro save account”.
This image also appeared on the defendant’s flyers, brochures which were distributed by the defendant countrywide.
However, the productions were commissioned, assigned, licensed or prior consent granted to the defendant to take her photograph and use her image on the billboards for advertising purposes.
The main issue was “whether the plaintiff’s image rights had been infringed upon by the defendant and or the third party.”
Court stated that under common law jurisprudence publicity rights fall in the realm of the tort of “passing off” which idea was developed on the notion of natural rights 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 of own product or service.
While resolving the main issue court stated that for one to succeed in an action for infringement of image rights such a person has to prove the following basic elements;
- The plaintiff must be identifiable;
- The action of the defendant must be intentional; and
- That defendant must have acted for commercial gain.
WHAT MUST BE DONE BEFORE USING SOMEONE’S IMAGE?
Before you start using someone’s image or any other image that you have downloaded from the internet to boost your new website or advertise your business, you need to do the following:
- Obtain written consent from the owner of the image. My emphasis here is written consent and not simply “closing the deal” on the phone or some informal verbal meeting. Once a party tries to deny the agreement there will be evidence of the authorization to use such an image. In most cases, such agreements come with payment of a certain amount of money to the image owner according to how the negotiations are conducted. Parties may also need to seek the services of a lawyer so that they have bulletproof protection.For online images, before you download images from the internet, whether there is a word copyright or not. You will need to seek the consent of the owner. Usually, there is an option on the photo you can follow to contact the image owner to get consent to appropriate it.
- Avoid invasion of privacy. Invasion of privacy includes any circumstances in which someone’s personal information is shared publicly when there are legal protections to prevent that from happening. For instance, taking a photo of someone in a place where they would expect privacy, then publishing such a photo is not permitted. Generally, invasion of privacy as regards to image rights has four elements that are;
- Publication of private facts; for example sharing your client’s photo on Facebook or twitter page that he lost 20 pounds in a week after using your product. Since these are public platforms the continuous sharing of the post might create the undesired effect on your client by making public the information that he never wanted to be disclosed;
- Intrusion on seclusion; Melisa Gold writes in her article, “can businesses use customer image on social media?” that this occurs when someone wrongfully intrudes into another person’s private activities. A photo of someone in public cannot be used for commercial use without permission. For example, the owner of a boutique cannot share a photo on social media of a customer at a private party without first getting consent. Well, you might see such as common acts in Uganda but the only difference between those people doing it and you is that none has sued them yet. So to be on a safer side, avoid it or seek permission before using the photo.
- False light; this is simply publishing information about someone that is inaccurate and misleading. It may border defamation but the causes of action are different. For instance, if someone is manipulated or coerced to share your image without permission captioned with some description that is inaccurate or misleading.
- Misappropriation; this last mode of invasion of image privacy happens when you use a person’s name or likeness for the benefit of your business without prior consent.
- Avoid copyright violations. Copyright violations can hit your business hard. This means that you need to safeguard yourself before you use someone’s image to promote your business. If you are sharing, retweeting someone’s image on your business website, you must tag the author of the image or post containing that image since you can assume that the copyright for any photo or content posted is held by the individual who posted it. It is also paramount that you put a disclaimer to your post that the image is not yours. If need be you must get permission or consent of the owner of such an image.
In conclusion, as much as Uganda doesn’t have outright image rights law, these rights can be and indeed have been interpreted from other human rights that protect the privacy of individuals and security from misrepresentation, exploitation and unjust enrichment.
The case of Winnie Asege is one of a kind that opened floodgates to more judicial activism in upholding the rights of individuals as far as image rights, privacy, and unjust enrichment is concerned.
Since this area seems grey, but yet extremely hard to avoid by the business enterprises that rely on extreme advertising to succeed in business, insurance companies need to come in handy and design policies that protect such companies and individuals that find themselves in such a situation.
Bright Natumanya is a commercial law practitioner with M/s Tibugwisa and Co. Advocates.
For comments and inquiries contact him at email@example.com or +256775788115.
This article provides general information only. It is not intended to provide advice concerning any specific set of facts, nor is it intended to be relied on as legal advice.
(Published with Author’s Permission)
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