Profits in pixels – post without consent & pay too; understanding your image rights
As an artiste, content creator, social media influencer, video vixen, dancer all cum celebrity, your image forms the basis of their trade. The hordes of fans and lovers of your work, associate this image with your persona. It serves as your personal brand through which you market your work as well as external products and services. As your brand grows through your image, eventually popularity attracts endorsement deals from other brands and marketing firms alike, seeking to ‘push’ their product. Understanding your critical role in ensuring revenue generation through your image is therefore paramount.
Demystifying Image Rights
Image rights account to an individual’s proprietary rights in their personality and the ability to exploit and prevent unauthorised third parties from making use of that individuals name, nickname, image, likeness, signature and other attributes to that individual’s image. Kenyan courts have been keen on laying bare the aspects of data privacy that associate with image rights and as such, intellectual property. The High Court in Wanjiru v Machakos University (Petition E021 of 2021 [2022] KEHC 10599 (KLR) well interpreted the issue of image rights in relation to privacy rights and data protection laws.
Case Analysis
The Court examined whether the accused’s- Machakos University, use of the Petitioners photograph in advertising without her consent, violated her right to human dignity and primarily in this case- her right to privacy. The Court emphasized the need for data controllers to inform subjects of their rights and any action they intend regarding to data collected from the subjects. Additionally, the Court found breach of her image rights by focusing on whether the use of the photograph was for financial gain.
It was finally concluded that, since the end goal was to inform the public about courses offered and hence generating revenue for the university coffers, this did in fact infringe on the Petitioner’s image rights.
On 22nd January 2025, the Office of the Data Protection Commissioner (the ODPC) in Richard Wafula v Hotel Tobriana (ODPC Complaint No. 1708 of 2024) also issued a determination against unauthorized commercial use of photographs taken without written consent.
Case Analysis
The Commissioner analysed whether there was breach of the right of erasure following the complainant’s request to delete the images and videos from the hotel’s Facebook and Instagram platforms. In determining this issue, the commissioner also examined whether the hotel as a data controller or data processer notified the data subject of the use of their data. The ODPC also delved into the issue of commercial use of public data by the hotel where it posted the complainants images and videos on it’s social media accounts.
The ODPC found the hotel in breach of all the above issues and it ordered the hotel to not only delete the Complainant’s data but also pay Kshs. 750,000.00/= as compensation for the commercial use of his data without his express consent and for the violation of his right to the erasure of his data.
Simply put, Image Rights encompass an individual’s ownership over their own persona and ability to prohibit unauthorized usage of various aspects associated and rooted in their identity. These aspects involve their picture or caricatures, their physical appearance, likeness, mannerisms, voice, personal logos and slogans and signatures. This grants them legal authority to control and protect the commercial use of their personal brand.
In relation to scope with regard to the right of privacy the courts connected image rights as a property right which then safeguards their inherent dignity.
The court in the Machakos University matter further held that “protecting an individual’s dignity includes safeguarding their life, physical and moral integrity, honor, and reputation”
Property Rights vis-a-vis Image Rights
As the right to property is guaranteed under Article 40 of the Constitution of Kenya, this also involves intellectual property rights which enables creators, owners of copyrighted works, trademarks among others to benefit from their own creations, inventions and investments in innovative endeavours.
As marketing strategies evolve, the use of media platforms exposes one’s image. For individuals, when their images proffer commercial benefit without their consent eventually constitutes an unjustifiable invasion of the person’s rights leading to an entitlement to damages.
To avoid losing out on revenue, it is advisable for commercial entities seeking to incorporate individuals in image-based advertising to enter into contracts addressing image ownership and exploitation. Parties should enter into a Model Release Agreement that grants permission for use of the individual’s image.
Conclusion
For businesses and entrepreneurs, respecting image rights is not only a legal obligation but also a strategic move that enhances brand integrity and fosters positive relationship with creatives and public figures. All parties can achieve a balance between commercial interest, creative expressions and individual rights, thus contributing on how entrepreneurs navigate the dynamic world of digital media and marketing.
The above decided decisions are a clarion call to organizations to audit their internal convectional practices to determine whether they are up to date with the evolving legal landscape on data governance.
Personal data including but not limited to image rights is recognized by law as a valuable item that belies human identity and human dignity, thus deserving of conscious and intentional decision making by organizations to prevent being on the wrong side of the law.
To understand more on image rights and how to protect your interests, please reach out to us at info@bellmacconsulting.com to better understand and enforce your image rights.