There is some disagreement on who coined the phrase “image is everything”. Many believe it was Andre Agassi, a famous tennis player who, at age 19 in 1989, presented the phrase in a TV ad for Canon, as he stepped out of a Lamborghini looking cool.
That ad, by today’s expression, ‘went viral’, so much so, that his fans would cheer him on by saying ‘C’mon Andre, Image is everything!’ At the time, the phrase juxtaposed the view that indeed, you may use your image to market yourself.
Your image, the concept under which you present yourself, including your personality, may also be presented by external features, such as a photograph.
A photograph depicts your likeness and may also describe your personality depending on what it portrays, the angle, and the additional modifications made.
Indeed, a picture may speak a thousand words on your behalf. Woe unto you if that picture was taken when you were not willing or ready to present your image, or if it misrepresents the facts around your personality. This happens quite often when pictures are taken without your consent or used in ways you hadn’t agreed to.
Imagine this: you, a staunch teetotaler and non-smoker, are at an event sponsored by a leading alcoholic beverage company in a local park. You are having a great time, laughing at everything and nothing as your friends enjoy a few beers and cigarettes. You notice the event’s paparazzi going around taking pictures. Without much thought, you pose for a few with your friends.
A few months later, you are driving along a busy highway and right there on a prime billboard, you see your photogenic laughing face, a bottle of beer next to you and the caption ‘Fun times, all the time!’ You are outraged!
After leaving scathing messages on all the company’s social media pages and email inboxes, their reply is, “But what is the problem?”
In their view, the picture is not edited, you were at the event, you knew the event sponsors, and you actually posed for the picture. So, no, they shall not take the billboard down.
Instead, they can M-Pesa you a nominal token and send you a gift hamper. Furious and anxious you reach out to a friend, a legal expert in intellectual property, for advice.
Your first question will be: “Who owns the photograph that was taken? “ Kenyan copyright law bestows the right of ‘an artistic work’ upon the author. Therefore, if the paparazzi is a staff member or contracted by the beverage company to take the photographs, the photographs are owned by the beverage company.
Your lawyer friend might go on to ask where the photograph was taken. This is important because various case law has concluded that photographs taken in a public place with no restrictions on photography are allowable as long as they are not taken with the intention to harass an individual. Your friend also gently reminds you that posing for the picture implies that you allowed it to be taken.
“This is unfair,” you tell your friend, “are you saying that I can do nothing?” No, and this should offer you some relief.
Image or personality rights come with an additional right not to have your image used to defame or exploit your personality — especially for a commercial purpose. If this happens, a tort — a civil wrong —would also have been committed against you.
In N W R & another v Green Sports Africa Ltd & 4 others, a petitioner sought a declaration over a breach of two minors’ rights to privacy under Article 31 of the Constitution.
The petitioner succeeded against a betting company, which had used the minors’ images on a billboard without their consent. A modest amount in general damages was awarded for the infringement of their rights. The court in this matter used the following three principles in making its judgement:
Use of a Protected Attribute: the law protects certain other personal attributes as well, and can step in to protect the personality depicted by certain images.
For an Exploitative Purpose: a person’s image should not be used for commercial or other exploitative purposes unless for legitimate public interest.
No Consent: a person must establish that he or she did not give permission for the use which in certain circumstances may be offensive.
In conclusion, your friend is quite certain that a legal suit against the beverage company is sustainable. Now, the ball is in your court on how you want to proceed.
As you mull over your decision, you are reminded that the best protection in future is to be more aware of your surroundings, especially in public places and events. In any case, you have the right to decline to have your picture taken — even if you know that you look great in them!
Wanjama is Head of Legal and Company Secretary, Cytonn Investments.