Photo by Ekrulila from Pexels

By Jentrix Wanyama*

When the French government purchased the first photography patent, photography was declared ‘a gift to free the word’. These words would turn out to be somewhat prophetic, as photography would go on to have a resounding impact on the world.[1] For instance, photography played a role in sensitizing people on the horrors of war, since for the first time, citizens of different countries were able to actually see the ravages of war that had before then seemed so far away.[2] 180 years later, it is interesting to note how the law concerning photography has developed in Kenya.  Does the state of applicable laws show our esteem for this gift or are we stifling it? In this blog, we discuss the law on photography in three broad themes: copyright; image rights and privacy; and security.

Copyright

Is photography protected under copyright?

Copyright is a form of intellectual property that includes artistic, literary and musical works. Under the Copyright Act of Kenya, photography is recognised as an artistic work.[3] For copyright protection, an artistic work must be original and expressed in material form.[4] Photographic ideas or concepts that have not been reduced into material form cannot be protected under copyright. This is the idea-expression dichotomy, which means that the law protects not the idea, but its expression.

Who owns the copyright in a photograph?

The Kenya Copyright Board (KECOBO) advices that a photographer or the creator of the photograph is the first owner of copyright in the photograph. The Copyright Act provides that the author of a photograph is the person responsible for its composition.[5]

Section 31 of the Copyright Act provides that for commissioned works and works made under the author’s ordinary course of employment, copyright shall be deemed to be transferred to the employer or person commissioning the work. Here, the employer or contracting party is deemed to be the author of a photograph. However, this is not absolute as the section allows for the parties to contractually exclude or limit such transfer. The photographers should therefore be careful that the contracts they enter into clearly reflect their intentions, and define who owns the work, whether such rights shall be transferred, and if so, under what terms.

What can’t others do with my photographs and what remedies do I have if they do?

An author has moral and economic rights over their creative works. Reproduction, adaptation, sale, distribution and publication of the works are economic rights as they enable the author to earn from their work. When a third party does any of these actions without the author’s consent, this is called copyright infringement.[6] Moral rights on the other hand enable the author to claim ownership of the work, object to distortions, mutilation and other modification. Moral rights are under section 32 of the Copyright Act and they are non-transferrable except through succession.

The reliefs available for infringement include damages- (a sum of money which is normally granted on a discretionary basis by the court depending on the loss suffered), injunctions and royalties in lieu of damages. It is noteworthy that Section 35(5) of the Copyright Act provides that no damages shall be awarded where it is proven that the defendant did not know- and could not have known- that copyright existed in the work. Other remedies are however available.

Image rights and privacy

The stage for image rights, also known as personality rights, has been set in Kenya over the past few years with several notable cases both within and outside court. Rapper Wangeci’s #TecnoComeClean campaign demonstrated against mobile company Tecno using her images for advertisements. Readers may also recall the standoff between photographer Simply Kech and Octopizzo where Octopizzo’s team claimed image rights over photographs taken by Simply Kech.

In Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others,[7] the court defined image rights asthe right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity’. Photography makes it possible for one to exercise personality rights over their image.

The legal murk seems to be clearing with two court cases yielding judgements in favour of the complainants in a matter concerning image rights. In Rukia Idris Barri vs Mada Hotels Ltd, [8]  the defendant used a photo that it had taken of the complainant when she was a trainee at the defendant’s establishment to advertise the establishment. The Plaintiff had only consented to her photo being used from 1997 to 1998, yet here was the photo, published in a popular magazine in 2011 without her knowledge or consent. The Court agreed that her right to privacy and dignity were interfered with by the defendant in publishing her photo without her consent and awarded her Kes 300,000 in damages.

Ms Kumena in Ann Njoki Kumena vs KTDA successfully sued KTDA for using her image in brochures for an economic purpose.[9] The Court here relied on the following test to satisfy an unlawful use of image:

  1. Use of a Protected Attribute: The plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff’s name or likeness, but the law protects certain other personal attributes….
  2. For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposesUse of someone’s name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff’s identity and a matter of legitimate public interest.
  3. No Consent: The plaintiff must establish that he or she did not give permission for the offending use.’

The court has consistently upheld the relation between image rights, the right to privacy and human dignity.[10] Right to privacy is a constitutional right in Kenya[11] which includes the right to be left alone and not be subjected to unwanted publicity.[12] Photographers should obtain informed consent from their subjects and fair remuneration where necessary.

Photography and Security

Photographers have often complained of harassment by law enforcement personnel on the basis of ‘prohibited areas’ and claims of nuisance. In 2017, the outcry was so loud that the then newly-elected governor Mike Sonko pledged to create favourable by-laws.[13] Sadly, this has not been achieved three years into his term.

The perceived law that security personnel seem to rely on in such incidences is Section 3 of the Official Secrets Act, which provides that one must seek the authority of the officer in charge before taking photographs of a prohibited place. The Act provides that a prohibited area is that which is used for or in connexion with the maintenance of public security; munitions, plans or documents of war; and, any place declared prohibited by the Minister in charge of security. However, it seems every public space has been labelled prohibited. For example, journalists were barred from accessing the Jomo Kenyatta International Airport during the infamous Miguna Miguna deportation saga on the strength of this provision.

Conclusion

The Constitution of Kenya recognises, calls for support, promotion and protection of intellectual property rights under Article 40.  For intellectual property rights in photographs, this has been achieved through the Copyright Act. The progressive recognition of image rights through the courts is set to enhance the economic value of photographs, not just for photographers but the subject of the photographs as well. This will help create a culture of respect of personality rights and privacy within the sector. However, photography still does not enjoy maximum legal protection in many ways. Prominently, the pervasive mishandling of photographers in Kenya, ironically done mostly by law enforcement officers, should be curbed. The Official Secrets Act should be amended to specifically state the public areas where photography is not allowed to those concerned with security only.

* Jentrix is an intern researcher at CIPIT.


[1] Sun Y, ‘Power of photography: Origin and impact’, Media Theory and Digital Culture, Spring 2013.

[2] Covkin S, ‘Photography as history in the American civil war’, CUREJ, (2014), 1.

[3] Section 2(1), Copyright Act, (Cap 130, 2001).

[4] Section 22(3), Copyright Act, (Cap 130, 2001).

[5] Section 2, Copyright Act, (Cap 130, 2001).

[6] Section 26, Copyright Act, (Cap 130, 2001).

[7] Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others, (2017) eKLR.

[8] Rukia Idris Barri v Mada Hotels Ltd, (2013) eKLR.

[9] Ann Njoki Kumena v KTDA (2019) eKLR.

[10] See Ann Njoki Kumena v KTDA (2019) eKLR, Roshanara Ebrahim v Ashleys Kenya Limited & 3 others (2016) eKLR, Alfred Ombudo K’ombudo v Jane W. Odewale & another (2014) eKLR, See also see C.O.M. v Standard Group Limited & another (2013) eKLR.

[11] Article 31, Constitution of Kenya, (2010).

[12] Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others, (2017) eKLR.

[13] Tweet still available on Governor Sonko’s Twitter Account:

https://twitter.com/MikeSonko/status/897478288888782849?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E897478288888782849&ref_url=https%3A%2F%2Fsokodirectory.com%2F2017%2F08%2Fphotographers-now-free-document-nairobi-city-gov-sonko%2F on 15 August 2019.