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Copyright: The least respected law?

Saturday May 19 2018

Rapper Octopizzo poses for a picture during the launch of the Captain Morgan Gold on November 21, 2017. PHOTO | FRANCIS NDERITU

Rapper Octopizzo poses for a picture during the launch of the Captain Morgan Gold on November 21, 2017. PHOTO | FRANCIS NDERITU 

BONFACE NYAGA
By BONFACE NYAGA
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It is an issue that pits rapper Octopizzo against photographers, stirring up serious legal issues. BONIFACE NYAGA uncovers the story behind the drama.

In what he claims is a response to photographers who come to his events, take photos without permission and then raise drama online, Octopizzo put out a scathing attack.

In a disclaimer that was read by many as an affront on the noble profession, he said: “Octopizzo reserves the right to deny taking of photos or videos of him during his events. While attending an Octopizzo event you agree to only take photos or videos for personal use. No photos or videos may be taken for commercial purposes without consent from Octopizzo and his management team, unless through the authorised official photographers of the event."

IMAGE RIGHTS VS COPYRIGHT

The post evoked a heated debate between fans of Octopizzo and defenders of photography. Issues of legality, image rights versus copyrights, were raised with both sides of the aisle throwing jabs in defence of their position.

As they say, in a war, the first casualty is the truth, and there was very little to go by as both sides went at each other’s throats.

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It seems the genesis of the drama was a post by up-and-coming photographer, Ian Korir aka Kech, on his Twitter handle @simplyKech, where he was demanding payment for use of his photo to promote an Octopizzo event.

In the tweet he said: “These guys are using my photograph to promote their event without my consent and without paying for it as it should be. I just sent an invoice. Should pay, must pay!”

Many came out in his support and it seems that Octopizzo’s disclaimer was in response to this tweet. So what really happened, did Kech have permission to take the photo, did Octopizzo have the right to use the photo?

Now that the disclaimer is out what does it mean for both commercial photographers and photo journalists?

EVENT PHOTOS

In an exclusive interview with Buzz, Kech stated that he took the photograph upon an invitation to attend Octo’s event by Mookh Music Live; who were the event organisers. They had seen a couple of his images from a previous event and offered him tickets to attend Octo’s event on May 4.

Kech claims that he categorically told them that if they were going to use his photographs, he would send them a quote. To which they replied that they wouldn’t need to use the pictures of that event.

He also asserts that the event organisers gave him permission to post the photos on his social media, which he did. After the event Octopizzo liked the photos that Kech posted and contacted him to send more, which he did.

Kech later found out that another event organiser (TGR) was using his photograph commercially, without his consent and without following due process, to promote their upcoming event, at which point he sent an invoice to the event company demanding payment for the commercial usage of his photograph.

“When I contacted TGR to tell them of the copyright infringement, they informed me that Octopizzo sent them the photo and that I should contact his management to pursue the matter,” Kech explained.

“The photo in question was in the folder that I had sent to Octopizzo upon his request, it was not published anywhere else. This whole story is being twisted against me; I just want to be paid for my work. My lawyer is pursuing the matter and I hope we can resolve it amicably."

PERMISSION

Buzz reached out to both Octopizzo and representatives of Mookh Music Live to respond to this claims but they declined to comment by the time we went to press.

According to Gerry Gitonga, a leading intellectual property expert, Octopizzo is within his rights to prevent anyone from taking his image at a concert. Anyone using Octo’s image for commercial purposes needs permission from him, this however does not apply to photo journalists.

Mr Gitonga contends that photo journalist have a right to report on matters of public interests and are at liberty to take photographs and use them for editorial purposes. He, however, argues that if indeed Kech did take the photos with consent then he deserves to be paid for his intellectual property.

“In Kenya intellectual property requires a written consent, it’s important for creatives to enter into binding contracts before embarking on any job. I know legal services can be expensive but the alternative is far worse.”  Mr Gitonga added. 

Muturi Kanini is a portrait and fashion photographer of international acclaim. He holds that photo images are intellectual property. He asserts that Kenyan law recognizes the photographer as the author of an image created unless they sign away or transfers those rights to another party.

For far too long this right has been trampled upon and Kanini is adamant that this must stop. He said: “We are all creatives, let’s respect each other’s rights. If I take a musician’s song and perform or record the same for commercial distribution, I have already infringed on some one’s intellectual estate. Would Octopizzo complain if I did a cover version of one of his songs without consent or credit?”

DEEPER ISSUE

This it seems is but a symptom of a deeper issue in the creative economy.

According to HEVA managing partner, George Gachara, there are serious gaps in the awareness of intellectual property rights, copyright and its management in Kenya.

A major proponent of the creative economy, George has spearheaded various capacity building forums to educate creatives on their rights and how they can use their varying forms of art to build each other.

“In the last quarter we have had many issues, including public officials blamed for copyrights infringement,” he explained.

“There have been complaints by artists in two notable instances; the sculpture unveiled in Cuba by the Head of State and the alleged illegal screening of the Watu Wote film in Las Vegas by KFCB officials. 

There is need for a comprehensive awareness programme on Intellectual Property for producers of original works, as well as training on IP management through contracts. This here is the work of the State Law office and the Copyrights Board.” 

Given the backlash that the issue has dredged up, the jury is still out on whether a Twitter-war was the best way to handle this issue. All the same the cat is out of the bag now and the battle lines are drawn, we can only wait to see who will be the last man standing.

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