Following reports that Ghanaian rapper Sarkodie has taken legal action against Ecobank Ghana for allegedly using a look-alike image of him in an advertisement without his consent, a wave of debate has sparked across social media platforms.
Many are asking the question: Does Sarkodie have a solid legal case?
To provide legal insight, Intellectual Property (IP) lawyer, Emmanuel Kantam Duut Esq., has shared some insights on the situation in an exclusive interview with GhanaWeb’s Isaac Dadzie.
What the law says about image rights in Ghana
According to Duut, while Ghana has existing copyright and trademark laws, explicit legislation addressing image rights or likeness is currently absent.
“This is a very new course of action in Ghana. We’ve never seen such a case in our courts. Image rights, publicity rights, and privacy rights are not yet part of Ghana’s established legal framework. But this could be a pivotal opportunity to test and expand intellectual property law in the country,” he stated.
The Image vs. likeness dilemma
A critical aspect of the case hinges on whether the advertisement in question used Sarkodie’s actual image or simply someone who resembles him.
To build a viable legal argument, it must first be determined whether Ecobank used Sarkodie’s image or his likeness.
According to Duut, Ghana’s current intellectual property laws offer limited avenues for addressing such a situation.
The two most relevant areas are copyright and, by extension, image rights. Under copyright law, image rights may be implicated when someone uses a person’s image or likeness without consent.
“In the image which was indicated in Ecobank’s ad, it is very clear that that is not Sarkodie. Yes, it is very, very clear that that is not Sarkodie. So now you are not dwelling on the image of Sarkodie in this regard, whereupon Sarkodie can make very strong claims that indeed his image was used.
“But we are looking at the likeness of Sarkodie. So there’s an image or there’s a figure that seems to look like him, and it is based on that that he’s making the case against Ecobank,” Duut explained.
According to Duut, since the image used was not of Sarkodie himself but rather someone presumed to be his look-alike, Sarkodie’s legal team would need to argue that the individual in the advertisement indeed bears a recognizable resemblance to the artiste.
“When a celebrity’s likeness is used in a commercial context, it refers to the exploitation of their recognisable appearance, which can include facial features, expressions, or overall persona,” Duut said.
The key legal phrase here is “recognisable appearance”.
The court must determine whether the person depicted in the Ecobank ad evokes Sarkodie‘s image to a degree that the public would reasonably associate it with him.
“Sarkodie would have to leave evidence, sufficient evidence to prove that there was a resemblance or there is a resemblance between the images being used in the ad to such an extent that it expresses the recognisable appearance of Sarkodie,” he said.
Ecobank’s possible defence
The bank’s advertisement carried the tagline “Looks can be deceiving.”
Given that no actual image of Sarkodie was used, and the ad did not explicitly state that the individual portrayed was meant to represent him, can the bank argue that it bears no liability?
“If they are trying to communicate to you that the image that you are looking at is not what you think it is, that means that by optical illusion, they have already drawn your attention to the likeness of the original image they are seeking to leverage upon to create the art,” Duut said.
By using a look-alike, the bank may be indirectly prompting viewers to associate the individual in the ad with the original person, potentially Sarkodie.
Therefore, Ecobank would need to argue that the person featured in the advertisement does not, in fact, resemble Sarkodie to a degree that would cause such an association.
“The first question that comes up is why, when you look at that image, what comes to mind, or who comes to mind when you look at the image? The foremost figure that comes to mind is the figure they are trying to tell you that the image isn’t. So if that is the figure they are trying to tell you that image they are projecting isn’t, then that means that there’s a high possibility that what they have expressed is a likeness of that figure. And that is what it means,” he said.
He added, “When you look at the hair, when you look at the beard, when you look at the polls, when you look at the face, does that constitute a recognisable appearance of Sarkodie?
“That is what would have to be determined by the court, and that is what Sarkodie would need compelling or sufficient evidence towards. On the other hand, the lawyers of Ecobank would also have to counter that “It doesn’t even look like Sarkodie.”
In summary
Sarkodie’s case seeks to break new ground in Ghana’s legal landscape and could set a precedent for how celebrity image and likeness rights are handled in the country.
The court’s decision may eventually come down to whether the public perceives the image used by Ecobank as a recognizable representation or misrepresentation of the rapper.
Sarkodie would need to demonstrate that the image used in the advertisement is indeed a look-alike of him, while the bank would be tasked with proving that the individual portrayed does not bear enough resemblance to be considered his likeness.
ID/EB
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