WRITTEN BY : ANTOINETTE BOAMAH ESQ
Introduction
The look-alike culture/industry is not new to us. Historically, it has been a booming industry in all parts of the world. With the introduction of intellectual property and protection against unfair competition laws in various jurisdictions worldwide, celebrities have made several attempts to curb this phenomenon.
In 2022, Canadian rapper Drake caused his lawyers to serve a ceaseand-desist letter to his lookalike in which they demanded that he refrains from using Drake’s name, likeness and trademarks, which they claimed were “damaging and defamatory” to the OVO brand. Parading yourself as a look-alike alone does not have any dire consequences on the face of it, the complications arise when one starts gaining commercial benefits from the exploitation of same.
In this article, we will look at Ghana’s current blooming celebrity look-alike industry, the laws being broken, if any, and the remedies available to the celebrities.
1. Can they be arrested for impersonation?
Under Ghanaian criminal law, impersonation in and of itself is not a crime. Defrauding by false pretenses is the crime. In essence, pretending to be someone is not considered a crime until one causes another to part with the ownership of something(money) solely based on this false pretense. In this case, the victim/complainant may not be the artiste.
It will more likely than not be a booking agent/event organizer who has parted with money for a look-alike to perform at an event. According to section 132 of the Criminal and other Offences Act of Ghana, 1960 (Act 29), a person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of a thing.
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To succeed in such a case, prosecution must prove that the accused (the look-alike) made a false pretence or impersonated another person (the artiste) and that by using the false pretence or personation, the accused obtained the consent of another person (booking agent/event organizer) to part with or transfer the ownership of a thing(money).
In applying this to the current issue, the questions may be: did the look-alikes make a false pretense/impersonate other people? And by means of the false pretense or personation, did they obtain the consent of other people ?
And by means of the false pretense or personation, did they obtain the consent of other people to part with or transfer the ownership of a thing?
A good example may be if an event organizer pays the King Promise look-alike to perform at his event. A prosecution for defrauding under false pretences may fail because the look-alikes have never at any time claimed to be the real celebrities.
Anyone booking them is not misled as to the real identity of the artiste. They know they aren’t booking the real artistes but their doppelgangers, so the case may fail.
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2. Is there any remedy for the Artistes?
A criminal case for defrauding under false pretenses may not succeed but the
artistes themselves may be entitled to some civil remedies against these look-alikes if they are able to establish a cause of action and prove their case. These actions may be born from Intellectual Property laws, Common Law (passing off) and the Protection against Unfair Competition Law.
a. Intellectual Property Laws and Protection
In Ghana, all original creative works expressed through a definite medium are protected by the Copyright Act, 2005 (Act 690). In this case, the state protects the original music recordings of creatives through state institutions like the Copyright Office. It goes without saying that unless the creator of the work consents to the use of it, any exploitation of the protected work should be to the sole benefit of the creator.
The exception is the fair/permitted use of the work, which does not confer a commercial benefit on a user other than the creator. Section 19 of the Copyright Act, 2005 (Act 690) states what the permitted use of a protected work entails.
So, if a Kuami Eugene look-alike is paid to perform the song of Kuami Eugene,
what remedy is available to Kuami Eugene?
Under section 37 of the Copyrights Act, 2015(Act 690), an owner of a copyright is entitled to collect royalties for the live performance of the copyrighted work or for the public performance of the recorded copyright work.
In Ghana, Ghana Music Rights Organisation (GHAMRO) is the body in charge of administering the music rights of artistes, including receiving and collecting
royalties on behalf of artistes. Usually, for performances, venues are supposed to obtain licenses from the GHAMRO to use the songs of right-holders.
An example is if a band will be performing artiste’s songs at a venue, the venue should obtain a license from GHAMRO. GHAMRO is, in turn supposed to distribute royalties collected from these venues to the actual owners of the protected work.
Any performance of the protected work must be with the express authorization of the holder of the right.
It is an infringement of performance rights under Section 28 of the Act to communicate a performance to the public without the authorization of the original performer.
In this case, Kuami Eugene’s look-alike performing his songs for commercial benefit without a license constitutes a copyright infringement, and Kuami Eugene is within his right to sue for a remedy. Under section 41 of the Act, upon an infringement of the rights of an owner under Section 28 (performance rights) he is entitled to the remedies in Section 44 of the Act.
The remedies available to him under Section 44 are a perpetual injunction to prohibit further infringement, recovery of damages for the infringement and any other damages he incurred from the infringement. This applies not only to actual copyright infringements but also to imminent copyright infringements.
b. Passing off
Passing off is a common law principle which means to sell goods or carry on business in such a manner as to mislead the public into the belief that the goods or business of the one person are the goods or business of another.
This law was historically developed to protect business owners from unfair competition. Unfair competition arises from one business gaining an advantage or a commercial benefit from passing itself off as another’s, therefore using the goodwill of one business for your benefit.
As innocent as the act may be, the look-alike might be liable for passing himself off as the original creator to obtain commercial benefit. In a viral video, one of the look-alikes claims that he has been able to enter spaces he could only dream of entering and generate income by virtue of the fact that he parades himself as a look-alike.
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This could be problematic, and a cause of action may arise from these facts. The intention must not necessarily be to deceive the general public for an action to arise. If an action by the actual artiste succeeds, he may be entitled to an order for perpetual injunction against the look-alike, damages for any financial or reputational loss he has incurred due to the actions of the look-alike and in other cases, he may be entitled to recover from the look-alike all the business he lost as a result of the patronage of the look-alike’s work .
c. Protection against Unfair Competition law.
The Protection against Unfair Competition Act, 2000 (Act 589) is the legislation which provides protection against unfair competition in Ghana. Section 1 of the Act explains unfair competition as any act or practice, in the course of industrial or commercial activities, that causes, or is likely to cause, confusion with respect to another person’s enterprise or its activities, in particular, the products or services offered by that enterprise.
Confusion may, in particular, be caused with respect to—
(a)a trademark whether registered or not;
(b)a trade name;
(c) a business identifier other than a trademark or trade name;
(d)the presentation of a product or service; or
(e) a celebrity or well-known fictional character
The Act captures the common law of passing off and broadens the scope. The remedies available to an artiste who sues a look-alike under this Act are an order of injunction to prevent the act or further acts of unfair competition;
(b) a provisional order to prevent unlawful acts or to preserve relevant evidence;
(c) the award of damages as compensation; and
(d) any other remedy as the court may consider fit to order.
The look-alikes may be in serious trouble if the artistes in question decide to pursue action against them. It must be noted that according to Section 8 of Act 589, suing under the Act may not preclude an artiste from suing under the Copyright Act to enforce his copyright.
Conclusion
To conclude, it’s all fun and games till it’s not. Intellectual property, just like a house (real property), is property. Until recently, creatives were not reaping the full benefits of their works. This legal framework was implemented to ensure that creatives who go through the arduous and tedious process of creating artistic work could be afforded some level of protection.
This further encourages creativity among people. Creating is full-time work; hence, others must not be encouraged to unduly benefit from work not created by them. On the other hand, look-alikes could help the creators by paying for licenses to use their work. At the end of the day, the creator benefits from using his work, and everyone wins.
The author, Antoinette Boama, Esq., is a private legal practitioner and an Associate at Ajavon,
Ametewee Law Firm in the Greater Accra Region of the Republic of Ghana. She is reachable via
boamaantoinette@yahoo.com
