Should the intellectual property laws be amended to provide for a distinct legal framework on image rights in Kenya?

Abstract

The laws of Kenya do not sufficiently cater for Image Rights and neither do the courts acknowledge it as a common law right. Disputes resulting from dishonest business practices such as the commercial appropriation of a person’s image lack an appropriate forum in Kenya’s formal justice. Image rights is an essential intellectual property right that shields a person from any unauthorized commercial use by third parties of his image in advertising,endorsing or merchandising their goods and services. This research paper sought to explore the scope of image rights including the theory of property that advocates for its justification,the proprietary interest it protects, examine its application in other jurisdictions where it is well established and lastly provide recommendations on its identification and implementation in Kenya.The study was carried out through the literature review of various legal scholars well versed with image rights and intellectual property law as a whole and took a qualitative analysis. It found that image rights also known as the Right of Publicity evolved from the right of privacy, a right that was first talked about in 1890 which was meant to protect the privacy and intimate details of an individual from the prying eyes of the press. Over the years however it was discovered that celebrities have an economic value in their name and likeness and an appropriation on the same resulted in an economic injury instead of mental distress and for this reason, the US courts appreciated the economic interest present in one’s image and introduced the right of publicity. Chapter one of the study shall introduce image rights and discuss the current situation in Kenya outlining the objectives of the study and the research questions, chapter two explores the theoretical framework while chapter three conducts an examination of image rights frameworks in the US and the UK. Chapter four shall apply the findings of the comparative analysis identifying certain lessons that Kenya can borrow and lastly chapter five shall provide recommendations to resolve the gap in the Kenyan legal system.