elements to support a cause of action are where the Plaintiff enjoyed a right; that
the right has been violated; and finally that the Defendant is liable. The Plaintiff's
rights are established under the Copyright and Neighbouring Rights Act and
consequently the Plaintiff enjoyed a right. The violation and liability of the
Defendant are admitted and are not in contention.
In reply on the issue of whether the Plaintiff has a cause of action? The
Defendant’s Counsel does not disagree with the law as summarised in Auto
Garage versus Motokov [1971] EA 514 on the essential ingredients of a cause of
action. Secondly the Defendant’s Counsel agrees with the law under the
Copyright and Neighbouring Rights Act 2006. The Defendant's case is that it is
true that the Plaintiff enjoys a right to the use of image but such a right cannot be
violated where consent has been obtained. The Plaintiff gave his consent and the
photo shoot for the use of the still images in the Defendant's in-house SAFAL
magazine, the Contractors Year Planner and the use of its audiovisual images in
the national media. The Defendant cannot be held liable where the Plaintiff freely
gave his consent/authorisation from the use of his images in the various media.
The Plaintiff's submissions that the Defendant admits violation and liability are
obscure and presumptuous and it is not anywhere stated in the pleadings or
evidence. In the premises the Defendants Counsel prays that the court should find
that the Plaintiff has failed to prove a cause of action against the Defendant
because he had consented to the use of his image.
In rejoinder the Plaintiff's Counsel submitted that the Defendant seems to agree
that the Plaintiff actually has a cause of action in light of the provisions of the
Copyright and Neighbouring Rights Act 2006. What is disputed is whether there
was consent or authorisation. In the premises the Plaintiff has a cause of action
and the issue of whether there was consent or authorisation should be dealt with
in the second issue.
Whether the Plaintiff's neighbouring rights were infringed?
The gist of the Plaintiffs case as presented by the Plaintiff's Counsel is that the
Plaintiff never consented or authorised the use of his images. The Defendant on
Decision of Hon. Mr. Justice Christopher Madrama
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