Who should own the copyright to #Githeriman’s photograph?


The Internet has been abuzz since the 8th   August 2017 when Martin Kamotho, now christened #Githeriman whose photo was taken while enjoying his githeri as he awaited to cast his vote during the Kenyan Presidential Elections was taken and posted  online.1613907_0

He has become an overnight celebrity and an Internet sensation. Individuals have resorted to creating hilarious memes while some corporates have jumped onto the bandwagon and have started to use his popularity for the purposes of advertising.2017-08-10-PHOTO-00005529

This blog is however concerned with the Intellectual property issues that have arisen because of the said photo more specifically the ownership of the photo.2017-08-09-PHOTO-00005964

Who owns the Photo?

Under Kenyan law, all that is required for a photograph to be copyright is that it be ‘original’. According to the Copyright Act Section 2(d), it does not have to possess even a modicum of artistic quality. It does not therefore have to involve any ‘creative expression’, ‘creative input’ or ‘artistic skill’, each of which serves only to produce irrelevant ‘artistic quality’. It merely needs to be taken.

That term has a single, simple, very good, indeed main, interpretation that does just that. It is ‘new’. And a photograph that has not existed before is undoubtedly new regardless of whom or what took it. It is therefore protectable by copyright.

Property, even intellectual property, has to have an owner, and that owner must according to the Copyright   Act 2001 Section 2(f ) be an  ‘author ‘. It can only be the ‘photographer’ which   under the Act has been defined as the person who is responsible for the composition of the photograph; The photographer then has the exclusive right to use and sell the image and can enforce their copyright against anyone who infringes upon their rights..

Under the law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:

  • If the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright.
  • If there is an agreement that assigns copyright to another party.

In all other cases, the photographer will retain the copyright, if the photographer has been paid for his/her work, the payment will be for the photographer’s time and typically an allocated number of prints. The copyright to the photos will remain with the photographer, and therefore any reproduction without permission would be an infringement of copyright.

In this  case  even though the  photographer is   known , he is yet  to come out and  claim ownership of  the photograph by showing  that  he  has registered  the same as copyright. The purpose of registration is to ensure that one has proper, independently verifiable, evidence of the date and content of their work. This ensures that if another party steals your photos you have solid evidence to prove your claim.

Without registration it can be very difficult, and often impossible, to prove ownership if another person claims the photo belongs to them.  When a work is not protected by copyright law, it is considered as being in the “public domain” and any one may use the work without permission.

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