THE INTERPLAY AMONG RIGHTS – COPYRIGHT, IMAGE RIGHTS AND THE RIGHT TO PRIVACY

By Frederick Mpanga Friday, August 17, 2018
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The High Court in Uganda has had to make a judicial pronouncement on the rights of individuals in photographs. There have been instances where an individual has filed a suit against a photographer, or the third party who commissioned the photographer, for using or displaying his or her image on a billboard or in advertising brochures or flyers, without permission.

Specifically, suits have been filed in the High Court seeking relief for claims premised on infringement of copyright and unjust enrichment through the unauthorised use of the image of an individual. Other claims have been framed as a breach of the constitutional right to privacy. In all these cases, the images were published for commercial purposes.

In deciding these matters, the High Court in Uganda has interpreted and defined the rights of a photographer vis-a-vis the rights of the person who has been photographed.

Who owns copyright?

In the case of Sikuku Agaitano v Uganda Baati[1], the plaintiff claimed that the defendant unfairly benefited from the use of his photograph in its advertisements. The contention was that he, the plaintiff, had copyright in the photograph and as such the defendant could not use his image. The High Court held and affirmed the position of the law that the photographer was the author and the creator of the work, the photograph, and therefore the owner of copyright therein.

The High Court therefore affirmed that under copyright law, unless the photographer was commissioned, the photographer’s rights included the right to sell the original or copies of the photograph to the public.  

By the same token, the High Court took the view that no copyright accrues to the individual whose image appears in the photograph. The exception is when the individual can show, to the satisfaction of the Judge, that he or she commissioned the photographer to take or create the photograph.

In a similar case, the claim was framed as an action against unjust enrichment arising from the proceeds from the unauthorised use of an image. The case law concept of image rights in this case appears to be synonymous with personality rights.[2]

Personality and image rights

Under common law jurisprudence, a personality right is the right of an individual to control the commercial use or exploitation of his or her name, image, likeness or other unequivocal aspects of his or her identity.

Image rights are also about the right to privacy of an individual (i.e. the right to generally be left alone and not have his or her personality represented in public without permission). This entails the right of an individual to control the publication of his or her image or to keep his or her image or its likeness from being commercially exploited, without permission or contractual compensation.  

The High Court takes the view that a claim based on image rights can, in the realm of intellectual property, be founded under ‘passing off’. This appears, in the view of the High Court, to be based on the notion that the natural rights which accrue to an individual include the right to control the use or commercialisation of his or her image by third parties who intend to derive benefit or economic gain from it. [3]

Another informative case is that of Asege Winnie v Opportunity Bank (U) Ltd & Another[4]. In this case, the High Court set the test and held that an action based on infringement of image rights will succeed if the plaintiff can show and prove three things. The first is that he or she is identifiable or that his or her identity is revealed to the public in the photograph. Second, he or she must show that the action of the defendant was deliberate and third, that the defendant’s action was driven by the need for commercial gain.

Right to privacy under the Constitution

The right of the individual to privacy, on the other hand, is a constitutional right enshrined under Article 27(2) of the Constitution of the Republic of Uganda, 1995, as amended. The article provides that no person shall be subjected to interference with the privacy of his or her home, correspondence, communication or other property.

Article 12 of the Universal Declaration of Human Rights, to which Uganda is a signatory, provides that:  

“No one shall be subjected to arbitrary interference with their privacy, family, home or correspondence, nor attacks upon their honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Individuals have successfully sought redress under the claim that their constitutional right to privacy had been interfered with through the unauthorised publication and use of their image on billboards, flyers, calendars and brochures. The said right has been recognised and enforced in Uganda even though, under copyright law, the image of the individual belongs to the photographer who has the right to publish, rent or sell the original photograph or its copies.

It appears, then, that copyright in a photograph does not confer an automatic right upon the photographer or such other owner to publish, rent or sell the original photograph or its copies.

In Asege’s case, the High Court accepted the plaintiff’s evidence that she was subsequently bombarded with telephone calls from different people. The publication of her image on a billboard had a huge impact on her: she had lived in fear because of probability of sections of the public believing she had gained big rewards from the publication complained of. This, in the view of the High Court, amounted to interference with her constitutional right to privacy.[5]

Obtain written permission first

The approach of the High Court in the Asege case lends support to the view that the holder of the copyright in a photograph should have the written consent of the individual in the image before seeking to make commercial use of it.


[1] HCCS No. 298 of 2012

[2] Asege Winnie v Opportunity Bank (U) Ltd & Another HCCS No. 756 of 2013

[3] Asege Winnie v Opportunity Bank (U) Ltd & Another HCCS No. 756 of 2013

[4] ibid

[5] ibid