By
Ifeanyi Chukwunonso OGBODO
iogbodo@gmail.com
The article captioned Chinua Achebe: Google Doodle For Guru Of African Prose by Senator Iheyen (lead partner at Infusion Lawyers) ends with the following words ‘before you google that doodle, one IP food for thought: since the google doodle contains Chinua Achebe’s image, if without permission, does google’s doodle infringe on Chinua Achebe’s image rights?’. This esoteric poser informed this disquisition.
Since Google began Dooling in 1998, it has aligned its brand with some of the greatest human beings that ever walked the Earth ranging from long-deceased authors to scientists. This has further heightened the suspicion of skeptics who believe that no symbol is too sacred for Google to profane. A close consideration of several privacy law suits against Google and its renowned place as the world’s highest copyright infringer could bear out the cogency of this fear.
The provision of image rights in law enables the restriction of commercial exploitation and protection of rights associated with a person’s image in public domain. This is often invoked by celebrities to control the commercial value and exploitation of their name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit.
Whatever may be the position elsewhere in the world, and however much various celebrities may wish there were, there is today in Nigeria no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image. While there is no law that explicitly provide for image rights in Nigeria there exists in the United States, strong legal framework for protection of image rights from unlicensed exploitation. While visual art ordinarily falls outside the area of patentable subject matter, Google sought to meaningfully repurpose its doodle by patenting and christening it ‘Systems and Methods for Enticing Users to Access a Web Site’. Put differently, it sought a method for enticing users to access a web page, comprising: uploading a first image in a story line to the web page and then periodically uploading successive images, following the first image to the web page according to the story line. The Abstract of the patent specifically recites thus: ‘A system provides a periodically changing story line and/or special event company logo to entice users to access a web page. For the story line, the system may receive objects that tell a story according to the story line and successively provide the objects on the web page for predetermined or random amounts of time. For the special event company logo, the system may modify a standard company logo, associate one or more search terms with the special event logo and upload the special event logo to the web page. The system may then receive a user selection of the special event logo and provide search results relating to the special event’. The wordings of the Abstract could make one wrongly assume that Google had gained patent right to alteration of a company logo that resides on a company’s web page. More so, the claims granted in the patent are steeped in technicalities due to their narrow wording. To peruse this issue further would take us too far afield from our focus of discourse.
In an attempt to expose the inappropriateness of our usual assumptions of correctness based on common usage, some legal and moral questions could arise. Does U.S Patent No. 7,912,915 titled ‘Systems and Methods for Enticing Users to Access a Web Site’ satisfy the patent prerequisite of innovativeness? If an artist’s legacy is for sale, is it compromised when made a Google Doodle? Does Google in fulfilling the Patent requirement rob honorees of context by transmuting their images to logos with attendant effect of reducing legacies to cartoons? If Google is the right booster of legacies, would it still be appropriate if Kiwi used Chinua Achebe’s image to sell polish or for a business to use the picture of a celebrity’s taken in the process of consuming its product to advertise its brand without the celebrity’s authorization?
The fear of unchallenged image rights violation has joined the queue of several cynicisms that Google in place of leading us to a more enlightened age has led us to a dystopia of social control and surveillance. One amongst Google’s tools for achieving this is by finding out things about people through their regular searches on the Web. Google seized itself with a redeeming mission of organizing the world’s information and ensuring universal accessibility and its much quoted motto ‘don’t be evil’, a motto it has flaunted by going against Claim 1 of the Patent which clearly allows the modification of the company’s logo only by ‘one or more animated images’ but the Harry Houdini Google Doodle used on March 24, 2011 to mark that birthday of Houdini, born Eric Weisz on March 24, 1874 came without any animation.
It is accepted that celebrities live for their fans and in so doing develop strong personalities that may create economic value around their image especially when expressed in public domain. The controversies surrounding the recent suit against Kiss Daniel by G-Worldwide -a record label that oversaw dealings in respect of the upload, distribution, performance, sales and use of the artiste’s songs and stage name ‘Kiss Daniel’ for four years; and the recent victory of Wizkid and Davido at MOBO Awards 2017 which held in Leeds are very illustrative of this.
The patent system was originally made to guarantee innovation and there is nothing uniquely innovative about doodles. Google simply creates images in perfect resemblance of those it assumes are deserving of tributes, stores such on a server and uploads them to the web server at times it deem appropriate.
Chinua Achebe’s image right was not violated on the strength of the Patent that shields doodles but supposing it was violated and considering that Google is headquartered in the United States, violation occurred at the web and evident on the home page of our computers, Chinua Achebe claimed dual citizenship and no national court in an African state has entertained suit against Google, how would such violation be addressed?
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