LEGAL ALERT: FOOTBALL PLAYER’S IMAGE RIGHTS BELONG TO PLAYERS NOT THE FOOTBALL FEDERATION, JUDGE DECLARES:

FOOTBALL PLAYER’S IMAGE RIGHTS BELONG TO PLAYERS NOT THE FOOTBALL FEDERATION, JUDGE DECLARES:

 “A soccer player being called to the national team doesn’t give rise to an implied consent to the use of a player’s image by FUFA for commercial purpose.”

High Court (Commercial Division) Civil suit no. 317 of 2011:Pro-line soccer Academy limited Vs MTN (U), MS CQ Saathi & Saathi and FUFA ltd.

Mr. Omongole Richard of Omongole & Co Advocates represented Pro-line soccer Academy limited in this matter and it was  decided in their favour.

Background

On 4^th July 2007, Pro-line soccer Academy entered into an agreement with 8 members of National Team (Uganda Cranes) that authorised it to enlist contracts for the commercial use of their images.

Ms – CQ Saathi & Saathi as an agent of MTN(U)Ltd entered into an agreement on 7^th September 2007 with Pro-line Soccer Academy  to procure 11 members of the Uganda Cranes to pose for a series of photo shoots to be used exclusively in advertising and promotional activities of MTN (U) Ltd for a period on 1 year .Despite the expiry of the contract ,MTN (U) ltd continued using the players without Pro-line soccer Academy Contract claiming that FUFA has rights to images of the individual players as a national team.

Court’s judgement

On the question whether FUFA automatically holds players image rights whenever they are called up by the national team, the court held that;

1. Image Rights are simply the right a person possess to control, sell, license, otherwise monetise his or her likeliness. Every person has a right of publicity which in short, is the right to own, protect and commercially exploit one’s identity and the holder of image rights is the individual whose image is reproduced.
2. An individual’s identity is infringed where a person’s image is used or appropriated with his or her permission for advertising purposes, creating a false impression that such person has consented to such conduct or supports the advertised product, service or business.
3. That an exclusive license that was granted to Pro-line Soccer Academy gave them the same rights as that of the owner’s of the images.
4. It is not implied that whenever a player is called to the National Team that he or she consents to the use of his or her image by FUFA for purposes of advertising the tournament and also in advertising the commercial interests of the sponsors of the tournament. The only consent that can be implied is when pictures are taken during a football match for public information.
5. Copyright cannot prevail over image rights, where there is doubt that the person’s consent has been granted for such use. The artistic freedom involved in the creation of Copyright protected works of mind based on another person’s image cannot override the autonomy of the protection of a person’s image. Image rights thus create an external, limitation of copyright law where the subject of the copy right is an image of an individual.

The legal implications of the Decision.

1. The Copy Right and  Neighbouring  Rights Act of 2006 does not apply where the photographer did not seek consent of the individual in the image before seeking to make commercial use of it.
2. An individual has a right to assign or grant an exclusive license to any person or entity to monetise his or her image rights.
3. The holder of an exclusive license in respect of image rights is entitled to sue under the same circumstances as the rights holder.

Authors