This month, Julius Yego aka the YouTube Athlete appeared to be the latest professional sportsperson to be a victim of the unauthorised commercial exploitation of his image rights (as illustrated by his facebook post displayed above).
The persona and image of a celebrity is a valuable commercial commodity and should be protected from dissemination and misappropriation without authorization. The term “image rights” means the inherent right of every human being to control the commercial value of their image, likeness, persona, or identity. This “right of publicity” was first recognized in the United States about sixty two years ago. Celebrities such as professional sportspersons generate the most economic value from this right. The right of publicity is violated when one appropriates someone else’s name or likeness for the purpose of economic benefit without his or her consent.
Whilst Kenya does not have a perfect “unified” legal system to protect image rights for celebrities such as professional sportspersons, the combination of rights and causes of action under the Constitution, common law and various statutes on intellectual property, defamation and consumer protection do afford some level of protection which enables celebrities such as professional sports persons to exploit and protect their image and brand very effectively.
There are currently a number of interesting cases pending before the courts on the issue of image rights protection in Kenya.
Back to the Yego story, can EABL really be found liable in civil court for celebrating the YouTube athlete’s success? Courts in Kenya may be persuaded to consider the decision in the Jordan v. Safeway case. In this case, a jury last month decided that Safeway — the parent company of now-defunct supermarket chain Dominick’s — must pay $8.9 million to Michael Jordan after using the basketball star’s name in an advertisement placed in Sports Illustrated. A copy of the advert in question is pictured below:
The above ad ran in a 2009 Sports Illustrated commemorative issue marking Jordan’s induction into the Naismith Memorial Basketball Hall of Fame. The ad includes a $2-off coupon for steaks. Jordan immediately filed suit claiming that his name and likeness was used in a commercial context without authorization. Although the Safeway suit is not new to the US where numerous publicity rights suits are filed, this suit is an important reminder that EABL’s likely defence that it was merely offering congrats may not necessarily absolve the brewer of liability if it is selling a product in the process.
In other words, it is one thing to publish the words “YEGOLD! A World Leading Record in Javelin Throw #TEAMKENYA” in a tweet or facebook post but it is quite another to create a poster where these words are juxtaposed to an EABL product in a manner to suggest Yego’s endorsement of the product.