The High Court of Kenya (the Court) in Nancy Chelagat Cherwon v. Hon. Martha Karua & 5 others addressed the complexities of copyright law and consent within our ever-changing digital landscape. The Court ruled that incidental use that is minor or secondary and is not intended as the main use of one’s copyright does not constitute an infringement under the Constitution of Kenya 2010 (Constitution) or the Copyright Act (Chapter 130) laws of Kenya (Copyright Act).
Nancy Chelagat Cherwon, a graffiti artist (Plaintiff), filed a lawsuit against six defendants for copyright infringement. She alleged that her artworks, created as murals in a restaurant and later extended to additional spaces owned by the 6th defendant (209 State House Road), were used without her consent in various commercial contexts. These included political campaign videos, Instagram marketing, and music videos. The Plaintiff claimed that this unauthorised use infringed upon her Intellectual Property rights, as protected under Article 40 of the Constitution and the Copyright Act.
Finding
The court dismissed the Plaintiff’s case, finding no copyright infringement by the defendants. It was found that the defendants had received permission from the 6th defendant, who is the owner of the premises, to use the premises which displayed the murals and artwork. Importantly, the 6th defendant did not disclose any exclusive rights held by the Plaintiff over these artworks to any potential users of the space. Furthermore, the court noted that the inclusion of the artworks in the defendants’ videos was incidental and was not the main feature of their campaigns or productions. This incidental use, according to the court, falls outside the scope of copyright infringement under the relevant legal frameworks and is determined on a case-by-case basis.
What this means for you
This judgment clarifies that incidental use of copyrighted material may not always be deemed an infringement, underscoring the necessity of conducting thorough legal reviews for all promotional and marketing activities. It also highlights the paramount importance of obtaining explicit consent and meticulously documenting Intellectual Property Rights, particularly in commercial contexts. Clear legal agreements covering all creative content whether owned or leased are crucial to prevent potential disputes over copyright infringement.
As your legal advisors, we are here to help you navigate these intricacies, ensuring your operations are both compliant and strategically secure in handling Intellectual Property.
