THE TWISTY TALE OF THE RIGHT TO PUBLICITY AND COPYRIGHT LAW

We have an identity that is owned by us, a sort of definition that puts into perspective the quote stated by most motivational speakers- “one is born original, why be a copy?”

We are different. Our voices are not alike, our initials are different, our signatures too, our voice, our images, the videos we produce, the initials we have, all are entirely a wide range of spectrums that makes them exceptional from what defines another person.

It might range, who the person is. They might be a musician, a pastor, a teacher, a footballer, an actor, an actress, a filmmaker, a rugby player. All these features matters not to what profession you are or what you do. You might even be a politician or a comedian.

All the above mentioned above put together is what defines the right of publicity or publicity rights.

That naming widely ranges, from common law countries, to the US and even European countries, with each region having a name to itself.

In the European countries, we call them personality rights, while in the US it is publicity rights, while in common law countries it is image rights.

Being a right that involves aspect of one’s identity, it qualifies itself as a property. This is because publicity rights branches itself as intellectual property. This is as defined by the International Trademark Association. As stated in Article 40 of the Constitution of Kenya, 2010, intellectual property is defined as property. Thus, in essence, publicity rights is considered as property rights.

Being part and parcel of intellectual property, one should enjoy their publicity right at the expense of others. Thus, when one wants to use such an identity of another, they ought to seek permission from the owner through a contract or coming to an agreement on the amount of monies that one ought to be paid.

Infringing on the publicity rights of another, brings upon the questions of the respect to one’s privacy and a sort of compensation ought to issue as one is using the other person’s identity to their benefit at the expense of another.

Image rights have found themselves in many different cases in court, to include but a few: Anne Njoki Kumena v KTDA Agency Limited [2019] eKLR.

That is on one hand, on the other hand, copyright is the total enjoyment of a right by an author or a creator to an original work made.

This might be in a composing a poem, writing a book, performing a play, recording a film or something else for that matter, that ranges itself to what copyright is defined as in Section 22 of the Copyright Act.

22. Works eligible for copyright

(1) Subject to this section, the following works shall be eligible for copyright or

related rights—

(a) literary works;

(b) musical works;

(c) artistic works;

(ca) dramatic works;

(d) audio-visual works;

(e) sound recordings; and

(f) broadcasts.

Our main point of focus is related to copyright that are: sound recordings, broadcasts, and audio visual works, and also artistic works.

One might use an identity of somebody, perhaps the face to create a painting and ultimately sell that painting to another. They might use the voice of another, to make jokes to it or come up with something like an advertisement or advertisements. You see from all these relates to using the personality rights of another in order to make a living for themselves. This might vary, to sketches of films being used, audio visuals, sound recordings to even SKIZA Tunes being made from a voice that identifies to an individual. It might even be the mode of dressing, copying how another dresses, though this one is stated with a lot of caution to it, it might or might not qualify itself to be in such a definition, or in this class of classification.

The twisty tale that comes now in such a scenario is how do you protect the two, how does one enjoy from the same. On one, another person has used the personality rights of another person to come up with a copyright. Since, the work created is original, there is skill and judgement and it is also tangible, but you ask again to what extent? To benefit from the identity of another person.

Being in such a state, how do you cure the two? From the personality rights, what percentage should one get from the copyright that was used from them as the roots. Is it 10% or it depends from case to case basis. Should there be law that determines such scenarios? Like there is a lot of questions to ask and answer to familiarize with oneself.

What that is noted is that: the decline of one’s identity will also determine the timeline of the copyright to be used. You see, the twisty tale, quick turning each other like passion tree stems.

One thing noted though, is that personality rights are personal in nature, as long as one does not claim for a breach, then it remains a silent topic. One way looked also is that: through their personality rights used, one gets fame, like what politicians gets. Which is a positive thing.

It is an interesting perspective to look at or from, between the two- personality rights and copyright law- who will run supreme?

REFERENCES

1. Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR:

“ 1. It is axiomatic that the right of publicity, often called personality rights, 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. It is generally considered a property right as opposed to a personal right.

2. Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off.

3. A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her “persona” is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech.”

2. “Image rights are known by different names and are subject to different legal treatments in different jurisdictions. They may be referred to as personality rights (EU) or publicity rights (US). The term image rights is commonly used in the UK and among other common law jurisdictions.1

Simply, image rights are an individual’s proprietary right to their personality to prevent unauthorized use of things like their likeness and even things like their signature or biometric data.”

(Florence A. Ongonjo, Strathmore University, “Legal Protections for Image Rights in Kenya, “ <https://cipit.strathmore.edu/legal-protections-for-image-rights-in-kenya/#:~:text=This%20right%20protects%20against%20uncompensated,and%20commercially%20exploit%20one’s%20identity> accessed on 23rd January 2024.)

3. The HMRC Capital Gains Manual (CG68450 – Intellectual Property Rights: image rights: image rights in the UK) provides an example definition of image rights used in sports players contracts, defined as:

“The legal and beneficial rights and goodwill that subsist in relation to the use, exploitation, reproduction of or in association with or otherwise of the personal attributes of the player including without limitation the name, nickname, initials, shirt number, autograph, caricature, statements, biographies, testimonials, endorsements, photographs, video, film or sound recording, voice, image reproduction and likeness and/or fair likeness or any other means of endorsement or identification, personal appearance or non-endorsement and so forth of the player, together with any relevant registered or unregistered UK and foreign copyrights, trade marks or design rights, which exist either now or in the future which comprise (whether wholly or in part) any of the matters referred to in this clause.” (harrison clark rickerbys solicitors, “Protecting Image Rights in the UK,” https://www.hcrlaw.com/blog/protecting-image-rights-in-the-uk/

Photo by Ketut Subiyanto on Pexel

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