Case of the Week: Laverne Carranza Naa Okailey Shooter v. Intercom Programming & Manufacturing co. Ltd

High Court, Accra |Suit No. BC/684/2015| Judgment delivered on 20th May 2019

Introduction

Can a company use a person’s image for commercial advertising without first obtaining valid authority or agreeing on the compensation payable?

This case concerned the unauthorised use of the image of a former Miss Ghana winner on commercial billboards and the extent to which she was entitled to compensation for that use. The Court was also called upon to determine whether earlier advertising agreements between the parties authorised the impugned use of her image.

Facts

The Plaintiff, Laverne Carranza Naa Okailey Shooter, won the Miss Ghana Beauty Pageant in 2012 and subsequently represented Ghana at the Miss World Pageant held in Bali, Indonesia in 2013, where she emerged as the second runner-up and became known as Miss World Africa 2013.

The Defendant, Intercom Programming & Manufacturing Co. Ltd. (IPMC), was one of the sponsors of the Miss Ghana Pageant. Following the pageant, the parties entered into agreements permitting the Defendant to use the Plaintiff’s image for specified advertising purposes. Under one agreement, the Defendant was permitted to use her image on billboard advertisements between May 2013 and April 2014 for a fee of USD10,000. Under a subsequent agreement dated 1 November 2014, the Defendant was permitted to use her image for its 2015 wall calendar for a fee of GH¢5,000.

In 2015, the Plaintiff discovered that the Defendant had mounted billboards bearing her image in Accra, Kumasi and Takoradi and had portrayed her as a “Technology Ambassador” for the Company. She maintained that she had neither authorised the use of her image on those billboards nor agreed on any compensation for such use.

The Plaintiff therefore demanded compensation of USD50,000. When the parties failed to reach a settlement, she commenced proceedings seeking a declaration that the Defendant had used her image without authorisation and compensation for the unauthorised use.

The Defendant admitted using the Plaintiff’s image but contended that the use was justified by the existing contractual relationship between the parties. It argued that the parties had anticipated future use of the Plaintiff’s image and that any compensation payable could subsequently be agreed upon. The Defendant therefore maintained that the Plaintiff’s claim for USD50,000 was excessive and unjustified.

Issues for Determination

The Court considered the following issues:

1. Whether the Defendant used the Plaintiff’s image on its billboards without her authority.
2. Whether the Plaintiff had a valid contract with the Defendant authorising the use of her image and her portrayal as the Defendant’s Technology Ambassador.
3. Whether the Plaintiff was entitled to the reliefs sought.

The Court’s Holding

The High Court presided over by Ackaah-Boafo J(as he then was) held as follows:

1. That the Defendant failed to prove that the Plaintiff had authorised the use of her image on the impugned billboards in 2015. Although the Defendant alleged that the parties had agreed on a fee before the billboards were mounted, no documentary evidence, payment records or written contract was produced in support of that assertion. The Court therefore rejected that aspect of the Defendant’s evidence.

1. That the 2013 billboard agreement had expired before the Plaintiff’s image was used in 2015. Consequently, the Defendant could not rely on that agreement as authority for the use complained of.

1. That the subsequent agreement dated 1^st November 2014 related exclusively to the use of the Plaintiff’s image on the Defendant’s wall calendar. It did not authorise the use of her image on billboards. The Court therefore rejected the Defendant’s attempt to extend the agreement beyond its express terms.

The Court as such declared that the Defendant’s use of the Plaintiff’s image and its reference to her as an Ambassador of the Defendant Company were without her consent and therefore unauthorised.

However, the Court found that the Plaintiff had failed to provide sufficient evidence to justify the full amount of USD 50,000 claimed. Although she relied on a separate advertising agreement with another company as the basis for the amount claimed, the Court held that the obligations under that agreement were materially different and could not justify the amount sought.

Nevertheless, the Court considered that compensation ought to be awarded because the Defendant had used the Plaintiff’s image without authorisation. Taking into account that the Defendant had previously paid USD10,000 for similar billboard advertising rights and considering the circumstances of the case, the Court awarded the Plaintiff USD20,000 (or its cedi equivalent) as compensation without interest and costs of GH¢20,000 in favour of the Plaintiff.

Implication of the Decision

The decision demonstrates that a party who uses another person’s image for commercial purposes must be able to point to a valid contractual basis for doing so. An expired agreement or an agreement relating to a different form of advertising will not suffice. The case further illustrates that although a claimant must prove the amount claimed with cogent evidence, the Court may still award reasonable compensation where wrongdoing has been established.

Significant Quotes

” I start this analysis by stating that it is indeed disappointing that this simple case has   taken almost four years since it was first filed to be completed. I note that Counsel for the Defendant whose name appear in this judgment as Counsel of record is the 3rd Counsel for the Defendant since the suit was instituted. The change of Counsel at all times unreasonably delayed the adjudication of the suit. Also, after the suit started the Court was compelled to grant a long adjournment from May 2018 to October 2018 because the Defendant’s witness said he was travelling outside the jurisdiction and was therefore not available for the continuation of the cross-examination. In October the Defendant’s Counsel applied to be removed as Counsel. I wish to state that I have chosen to state these remarks not as a condemnation of the Defendant per se but to remind all litigants that protracted delays in the administration of justice, impact negatively on all those who access the Courts and indeed give a wrong impression about the administration of justice in this Country. I trust that going forward we shall all play our part to prevent undue delays in the prosecution and adjudication of cases in the courts because the canker has certainly become a scar on the conscience of our dear nation.” – Kweku T. Ackaah-Boafo J(as he then was)

Commentary and Insight

Although the dispute principally concerned the unauthorised use of the Plaintiff’s image, one of the most striking aspects of the judgment was the Court’s concern with the delay in the prosecution of what it described as a relatively straightforward matter. The Court observed that repeated changes of counsel and adjournments occasioned by the Defendant significantly prolonged the proceedings, resulting in a case commenced in 2015 taking almost four years to conclude.

The decision therefore serves as a reminder that parties and their lawyers bear a shared responsibility to facilitate the timely determination of disputes. Procedural delays not only increase the cost of litigation but also undermine public confidence in the administration of justice. As the Court noted, undue delay in the prosecution and adjudication of cases has become “a scar on the conscience” of the nation.

Beyond its procedural lesson, the case also highlights the importance of clearly defining the scope and duration of advertising agreements. A party who wishes to continue using another person’s image beyond the agreed purpose or period must obtain fresh authorisation and agree on the compensation payable. The decision further demonstrates that while a claimant must prove the amount claimed with cogent evidence, the Court may still award reasonable compensation where wrongdoing has been established