CHAPTER 3: CASE STUDIESThis chapter presents a number of cases regarding the use of images of sportspersons without their consent in Kenya. Due to the cases being unreported and unpublished, there lacks a conclusive view or opinion by the courts in these matters hence uncertainty in what constitutes misappropriation of personality rights.
Oliech v East Africa Breweries LimitedFactsAJ Auxerre striker Dennis Oliech, Parma midfielder Macdonald Mariga and locally based Sofapaka FC player Bob Mugalia, players of Harambee Stars (the Kenya national football team), sought to sue East African Breweries Limited (EABL), the former sponsors of the team, for misappropriating their photo in an advertisement for its flagship brand, Tusker. The image in contention was photographed during Kenya’s match with Angola on 26 March 2011 as the three players celebrated Mariga’s goal.However, the Football Kenya Federation (FKF), EABL and Harambee Stars Board representatives failed to provide direction and instead opted to refer the matter to FIFA. The matter was later dismissed by FIFA on the ground that it was an internal issue which could be solved amicably locally. The matter also found itself on the floor of the Kenyan parliament with the members of parliament supporting the players’ complaints and others whose rights had been violated prior to the suit.IssuesIt was undisputed that there existed a group agreement between EABL and the whole of the Harambee Stars Team in relation to image rights. The issue is whether this agreement could be relied on where specific players’ images were singled out to be used in advertisements.The other issue is whether EABL was justified in arguing that the three players pictured represented the whole team so as to preclude EABL from entering into separate agreements for image rights with each of the three players? ArgumentsOliech averred that he was not contacted prior to the commissioning of the advertisement which appeared on roadside billboards and newspapers.
EABL, and the Chairman of the Football Kenya Federation (FKF), Mr. Sam Nyamweya, rebutted that Oliech was not entitled to compensation as the terms of the sponsorship deal gave leeway to the sponsors to use the national team pictures for promotional purposes.EABL on its part argued that it had signed a contract with Harambee Stars as a team together for a sponsorship amounting to Kshs. 110 million sponsorship and included clauses that allowed them as the team’s sponsor to use images of the national team players’ in promotions. 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”.Mr Nyamweya similarly argued that Oliech did not deserve to be compensated because it was not only Oliech’s image which was used but also of the team. He further argued that EABL legitimately expected to get some benefits from the team, including using images of the team for promotions since they were the team’s sponsor.ConclusionIn the absence of consent by the three players being sought, EABL breached the terms of the contract by exploiting their image rights and ought to have paid them compensation.
The issue that arose during this discussion was attributed to there not being a single source of law that recognises image rights.Different countries have different arrangements with their national team players. The ideal one would be whereby national team players sign a contract with the respective federations. This in turn gives them collective bargaining agreement in regards to participation for the national team. Such an arrangement incorporates insurance, image rights, player bonuses, sponsorships, and many other relevant items. Most times there’s the issue of individual earning power whereby experienced players such as Oliech would have higher commercial power than a newbie such as Kevin Kimani. Nonetheless, the underlying principles that a number of federations have based their argument is on the fact that everybody in the team is used equally, and there is uniformity in pay between players in spite of their relative fame or popularity.
Julius Yego v East Africa Breweries LimitedFactsAn online ‘congratulatory message’ was posted by EABL acknowledging Julius Yego’s efforts in winning a gold medal in the javelin throw event of the World Championships in Beijing in 2015.The poster portrayed a silhouette of a sportsperson in the process of throwing a javelin by blending two words, ‘Yego’ and ‘Gold’, also known as a portmanteau with the caption reading as “YEGOLD! A WORLD LEADING RECORD IN JAVELIN THROW #TEAMKENYA” On one side, the actions of EABL did amount to an endorsement and they ought to have compensated Yego for reaping benefits from his ‘trademark/brand.’ On the other side, EABL’s actions were legal and they could not be forced to compensate let alone apologize to Julius Yego.
IssuesWhether the ‘congratulatory message’ by EABL gave the impression that Julius Yego was either endorsing their products or had entered into a commercial arrangement with them.ConclusionThe answer to the aforementioned question is no. EABL neither attempted to show that Julius Yego won a gold medal because he consumes their products nor that he promotes or commercially endorses their products. They simply found a creative way of congratulating him.
In the famous words of Dr. Benjamin Mitra-Khan, “when it comes to intellectual property rights, not everything that glitters is gold.”This scenario between Julius Yego and (EABL) where the former party used the athlete’s silhouette and name in promoting their product and later claimed that they were congratulating him for the gold he had won is indeed complicated.Kemboi’s victory dance on t-shirtsFactsAfter winning the men’s 3000m steeplechase race in Moscow, athlete Ezekiel Kemboi captivated the audience with his victory dance. Kemboi also made himself more appealing with his Mohawk hairstyle, the Kenyan flag around his waist and his green shoes. Later on, images of his sequential dance moves were seen to be printed on t-shirts as “Do The Kemboi”.
IssuesAs his dance becomes popular across the world, whether Kemboi could name his dance and copyright the choreography part of the dance as well as bring a suit against the makers of the t-shirts for copyright infringement.ConclusionSimilar to Usain Bolt and his antics, Kemboi and his dance are well known and can easily fetch billions of shillings. However, the answer to the question can be inferred from the statement; original dances that constitute “dramatic compositions” when fixed in some permanent record from which the dance can be performed. Thus, a comprehensive statement on the creative requirement of dance choreography is as follows: a choreographic work should constitute an original creation of dance movements to be performed for an audience, conveying some story, theme or emotional concept.Joseph Kibunja v. Rohto Mentholatum & HarleysFactsJoseph Kibunja, an athlete and guide for well-known Kenyan Paralympian Henry Wanyoike filed a suit in December 2016 to bar two companies, Rohto Mentholatum Limited and Harleys Limited from using his image to promote their product “Deep Heat” without his authorization. Wanyoike had on his end distanced himself from Kibunja’s allegations while basing his position on the fact that they were both representatives of the Henry Wanyoike foundation, which signed a contract with Rohto Mentholatum Ltd, giving them rights to use both their images.IssuesWhether the commercial appropriation of Kibunja’s image by the defendants in the promotion of their product without his consent was illegal and whether he deserved to be awarded compensatory damages for such unauthorization.
ArgumentsKibunja averred that he discovered in 2013 that this image was being exploited to advertise and market a product called ‘Deep Heat’ manufactured by Rohto and distributed by Harleys without his permission. Thereafter, he discovered his image had also been used several times to advertise and market the aforesaid product, Deep Heat, in several media outlets such as “The Asian Weekly” promotional calendar, promotional fliers and in corporate sponsorship materials such as banners, fliers and tee shirts. However, Kibunja averred he resigned from the Foundation in January 13, 2015 and even as a member of the foundation, he did not waive any right or proprietary interest in the use of his image. Kibunja further averred that he did not receive any remuneration in any form by both defendants for using his image. Kibunja asserted that he made a name for himself as an athlete who had featured and won national and international athletic events including the 2003 Singapore Marathon where he was the first runners up, 2004 Hong Kong Half Marathon, 2005 Great City Run (United Kingdom), 2005 Nairobi Marathon (21Km) 2005 Bangkok Marathon and many others.
He claimed that he brought up the issue of image rights with the defendants to award him a suitable compensation. However, his attempts to follow up with the defendants over the issue of remuneration were ignored. The defence that was likely to be raised by Rohto and Harleys was that there was no need to seek Kibunja’s consent due to his involvement with the Henry Wanyoike Foundation allowing them to use both the images of the Foundation’s representatives. ConclusionAny involvement of a sportsperson with an organization does not authorize the latter to use the images of a sportsperson that he or she has tirelessly worked to build for several years unless he or she receives benefits of whatever kind.Observers will be keen to see how the court goes about determining the various issues raised in this case.
SummaryFormer Sports Cabinet Secretary Otuoma stated that his cabinet had since developed a Bill to address some of the issues surrounding the welfare of sportspersons to be tabled in parliament to avoid the violation of their rights. This Bill later came to pass as the Sports Act which contained only one provision relation to image rights unders its subsidiary regulation. Section 18 provides that “The net revenue from image rights shall be shared between the sports person and the National office in the ratio of 90:10.”