Employer’s business with this consent. The preparations before the photo
shooting included face lifting, painting and the Plaintiff never objected to the
same. And at the briefing of all Employees it was clearly stated that the photos
were for use in the Defendant's in-house SAFAL magazine, the Contractor’s Year
Planner and use in the national media. Consent that was given by the Plaintiff and
the taking of the photo was for the use of the audiovisual materials. The Plaintiff
was in attendance when the briefing to the staff was made. Secondly the Plaintiff
went and obtained a new uniform which fact was not disputed and the uniform
was issued for the photo shoot.
DW4 testified that there was no discrimination as regards the employment in as
far as Union workers were concerned and the Union only address the terms of
employment and union workers only form a small percentage of the Employees of
the Defendant. Consent is individually given and the union could not give the
same on the Plaintiff's behalf. The fact that the Plaintiff belongs to the union does
not in any way mean that he doesn't audit Defendant in a fiduciary duty yet there
is an Employee/Employer relationship. Whereas it is true that the Plaintiff is not a
model, he was never asked to pose in any way but was instead asked to continue
with his work and not to pay attention to the camera crew. The photos were
taken sometime in the year 2011 and the Plaintiff did not raise any complaint
about the same until much later. The court ought to find that the Plaintiff freely
gave his consent for the use of his images and cannot therefore claim that his
neighbouring rights were infringed.
In rejoinder the Plaintiff's Counsel maintains that there was no consent or
authorisation. The wearing of a new uniform does not imply consent. Secondly
authorisation must be in writing and all defence witnesses failed to prove that
there was consent whether implied, constructive or express. There was no
authorisation at all of which the law clearly stipulates that the performer has a
right to authorise the use of images. There was no authorisation and no written
document whatsoever was adduced.
Whether the Plaintiff is entitled to a remedy all relief?
Decision of Hon. Mr. Justice Christopher Madrama
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