This past weekend photographer @simplykech raised a claim against several parties including, musician Octopizzo that his photo (of Octo) was used to promote a certain event without both his consent and due payment.
Several people have made varying comments and shared thoughts on what the position should be on moral and ‘common sense’ grounds. The key question should be, what does the law say?
These guys are using my photograph to promote their event without my consent & without paying for it as it should be. I just sent an invoice. Should pay, must pay! pic.twitter.com/pKI6JSdoNA
— KECH 📸 (@simplykech) May 11, 2018
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. For instance, a photographer sees a flower and thinks, “I could get a good shot of this.” The thought would be the idea but the shot (if she/he takes it) would be the expression of the idea. As such, copyright protection would accrue to the photographer.
Rights protected by copyright accrue to the author automatically on affixation of that work in a material form. This means that once the photo is taken, the photographer already has rights on it. It is encouraged that creatives should register their copyright to help in proving such ownership. Non-registration is neither fatal nor mandatory but, in such disputes, it would help prove ownership.
Simply put, personality or celebrity rights are the interest that public figures and celebrities get, solely from their celebrity status and public reputation.
Kenya does not recognize personality rights. This is in part due to the fact that personalities and names are not considered property. Further, it is argued, that once people become public figures such characters are matters of public interest and as such should be treated as public property.
Some countries expressly recognize the right to privacy and a right to publicity as a moral right. This right is not provided for in Kenyan law.
Author and Ownership
For photographs, copyright belongs to the person who is responsible for the composition of the photograph. In this case, Kech would be the owner of the copyright, since he took the photo. This is in spite of the fact that the subject in the photo was a public figure. Octo doesn’t have any rights, well at least under Kenyan law, on the picture.
However, the situation would be different in two instances. First, if Octo or any of the event organizers hired Kech to the take the photo as works for hire. Secondly, if there was an agreement after the fact and they paid Kech for the photo or Kech willingly gave them ownership of the picture.
However, as is with the publicly available facts, the photo belongs to Kech and the unpermissioned use of the image by the organizers may meet the infringement threshold.
The Kenya Copyright Board is a state agency whose mandate is to advise and promote the protection of copyright works. They offer free advice on copyright infringement concerns and disputes such as this one. Most creatives complain on social media, but they do not physically file any complaints, therefore, no action can be taken. The Board has a capable team of legal experts to advise on such matters and they can be reached on [email protected] or physically on 5th Floor at NHIF Building in Upperhill along Ragati Road.