Image rights must be respected by those that take commercial benefit of other people’s brands

Valuation as a profession can be best described as the estimation of the value of something, especially one carried out by a professional Valuer. For the purposes of this article, I am going to concentrate on the valuation of land.

Land being described as the space under the land, the land itself and the airspace over it, the appendages to this land come as a secondary factor. 

Unlike most professions that can easily be understood by the lay man after little explanation and dismissed to him as a leaving to the professionals who actually subscribe to this profession, valuers tend to find themselves like lawyers fighting off every Tom, Dick and Harry who think they can do their job.

Image rights could be a very profitable asset for those with attractive personal brands. The High Court in Uganda recently handed down a judgment involving the Federation of Uganda Football Association (FUFA), MTN Uganda Limited and Proline Soccer Academy Limited. 

Proline Soccer Academy Limited executed a contract with a group of national team players pursuant to which these players image rights were passed on to Proline for commercial usage.

These players’ images were later utilized by MTN in its advertisements and promotional activities on the basis of its sponsorship of the national team and its agreement with FUFA as the national football federation.

Proline was aggrieved by the conduct of FUFA, MTN and sought legal redress on the premise that it still had exclusive proprietary rights in the players images and that FUFA had no business contracting with third parties in respect of the same.

FUFA in defence to the claim was that as the national football federation, it had exclusive rights over players of the national team and not any other entity and could as such exploit the same for commercial benefit without necessarily contracting with the individual players.

Court found that FUFA had no basis to contract with MTN over rights that had been assigned to Proline and without the consent of the individual players whose personal brands were the subject of MTN’s advertisements. Court principally relied on the legal principle of nemo dat quod non habet, which in simple terms means that one cannot give away what he did not, in the first place, have.

FUFA had no proprietary interest in the players’ personal images and could not purport to give away what it did not possess. In the end, FUFA and MTN were ordered to pay a sum of Shs 570,600,000, interest and costs for their transgressions.

I’m not inclined to dwell or find fault against any of the parties that lost this legal battle. I’m also alive to the appellant process that may be invoked by any of the aggrieved parties. This said, the key lesson is that personal brands must be respected. It’s not permissible to gain from the use of another person’s brand/image without valuable consideration.

Of interest to the public is the increasing awareness and sensitivity of Ugandans to their image rights. It’s increasingly becoming commonplace to have suits against those that seek to exploit others’ brands/image rights without any value in exchange.

This reminds me of a case that we conducted sometime back involving a young lady who found her image on a huge Billboard used by a beverages company for its advertisement. This company had never contacted this lady at all. It was sheer arrogance and the belief that this person was helpless. This company, of course after demonstrating that it was exposed, later agreed and settled the matter amicably.

It’s high time that big business owners recognize that the public is now alert to infringements of this nature. The person intending to utilize image rights of the other for commercial gain must engage and agree with the holder of such rights. It matters not that the holder of these rights is an employee or a participant in activities regulated by such an entity.

There must be a contract, implied or explicit, that permits the exploitation of the person’s image for commercial gain and as has been recognized elsewhere, a person’s most valuable asset is his personality.

As a person with a bias in sports, I’m glad that our jurisprudence as a nation in this area of the law is on an upward trajectory. It creates opportunities for Ugandans to earn which cascades to improving livelihoods and developing talents.

Our sports luminaries will set their price for as long as they continue to excel. The offshoot is that many shall be inspired to work hard so as to attain excellence. It also encourages the younger generation to focus and perform at a higher level so that they can also enjoy the benefits that come along with fame. 

If a soccer player in the ilk of Jonah Kakande of the football powerhouse, S.C Villa is nurtured right from the start to appreciate that his personal brand is as lucrative as his performance on the pitch, he will spend sleepless nights working out in the gym and shall perhaps have no time to waste in other useless activities that confuse budding soccer players in this country. We need more of such judicial pronouncements that promote respect for personal brands. 

Talent lasts only for a short while and those that are talented to deserve recognition must be remunerated. 

While Fufa could have had genuine intentions in enlisting MTN’s sponsorship in exchange for exploiting the players personal brands, it is only fair that the players should have benefited financially or otherwise from this arrangement through Proline as the company that had entrusted their image rights to.

Incidentally most of these players have since retired and such benefits, had they materialized, should have kept them in good stead in the evenings of their careers.

The soccer fraternity in the country is, and rightly so, excited by such a judicial pronouncement.  We need to support brand and talent growth so as to have fans back in stadia.

Any addition in this direction is invaluable as it ultimately translates into investment opportunities for football enthusiasts and the creation of employment opportunities for Ugandans. With the Afcon - 2027 Pamoja bid in sight coupled with other positive developments in the soccer arena, this judicial pronouncement is as timely as it gets.

Mr Isaac Walukagga  is an Advocate of the High Court of Uganda.