COPYRIGHTS LAW IN NIGERIA; PHOTOGRAPHERS RIGHTS AND THE IMPORTANCE OF ENTERING INTO WRITTEN AGREEMENTS

???????COPYRIGHTS LAW IN NIGERIA; ?PHOTOGRAPHERS RIGHTS AND THE IMPORTANCE OF ENTERING INTO ?WRITTEN AGREEMENTS

The photography industry in Nigeria has in the course of time grown into a very big industry. Although there is no verifiable statistics that measures the market size of photography in Nigeria, however Nigeria’s import on optical, photo, technical and medical apparatus is estimated to be US$1.21 Billion in 2020.[1] The growth of the photography industry in Nigeria is largely as a result of modern technology, which has made photographs accessible through various digital platforms, and so people no longer just take professional photographs with the aim of just printing them out and placing them at a corner in their homes or offices, photographs now serve personal and commercial purposes. People take photographs for purposes of advertisement, news reporting, branding, minting Non-fungible-tokens(NFTs) etc. ?In the current digital age, where pictures do not just serve the purpose of preserving memories, but has largely become a way of generating revenue through various social and print media platforms, including blockchains, it is important that photographers know their rights vis a vis the rights of their employer, client or muse.

A lot of professional photographers in Nigeria have bagged endorsement deals worth millions of naira from some of the biggest multimillion dollar companies involved in the manufacturing of cameras, lens and other professional photography equipment’s. photographers also sell their works as NFTs, while others sell them in print form. Some of the photographs taken by these photographers are often used to promote brands and make financial gains. Apart from this photography equipment manufacturing companies, there are a lot of other businesses that engage the services of professional photographers to create images for the promotion of their brands. Based on the current position of the law in Nigeria, certain issues as regards copyright may come up as a result of such engagements.

Before delving into the pertinent issues that this article seeks to address, it is important to define the word “copyright”.

What is copyright?

Copyright is defined as a person’s exclusive right to reproduce, publish or sell his or her original work of authorship (as a literary, musical, dramatic, artistic or architectural work).[2]

According to the Black's Law Dictionary, 9th Edition, copyright is a right granted to the author or originator of certain literary or artistic productions, whereby the creator is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the literary or artistic works and publishing or selling them.

Putting it in simpler terms basically, copyright law says that when you take a photograph, you become the copyright owner of the image created. This implies that you hold exclusive rights to Reproduce the photograph whether for commercial purposes or otherwise and to display the image in a public space.

The legal regime of copyright in relation to photographs in Nigeria

In Nigeria, copyrights are governed by the Copyrights Act chapter 28, Laws of the Federation of Nigeria, 2004. (Copyright Act)

Section 6 of the Copyright Act explains copyright in a work to mean the exclusive right to control the doing in Nigeria of any of the following act: in the case of an “artistic work”, to do or authorize the doing of any of the following:

a.??????Reproduce the work in any material form

b.??????Publish the work

c.??????Include the work in any cinematograph film

d.??????Make any adaptation of the work

Under section 51 of the Act, which is the interpretation section, “artistic work” is defined to include among others “photographs” not comprised in a cinematograph film”.

Section 1 of the Act includes artistic works as one of the works that shall be eligible for copyright.

A successive reading and interpretation of the above sections, makes it clear that photographs are protected under the copyright Act in Nigeria.

What makes a work eligible for copyright protection?

In the context of this article “work” refers to a photograph. Section 1(2) of the Copyright Act provides that a literary, musical or artistic work shall not be eligible for copyright unless-

a.??????Sufficient effort has been expended on making the work to give it an original character;

b.??????The work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.

This implies that for a photograph to be protected under copyright, sufficient input must have been made to give it an original character and it must be in a definitive form.?This simply means that the works must not have been copied. However, Photographs by their nature would usually be in a definitive form.

As opposed to what a lot of people might believe, it is not necessary to register your work for it to be eligible for copyright protection. Once it is in a fixed medium it is eligible for protection and does not need to be registered. However, it is advisable to register your copyright as it provides an independent record/proof of the author’s work, in case of future dispute.[3]

Who owns the copyright ?

The current position of the law in Nigeria is that, copyright vests initially in the author of a work. this is so not withstanding the fact that such author has been paid to create the work or the work was created in the cause of his employment. This is so based on the provision of section 10 of the copyright Act. I used the word “current” because this has not always been the position of the law. Under section 9(1) of the repealed Copyright Act of 1970, the position of the law was that, in situations where the author of a work created such work during the course of employment, his employer was vested with ownership of the work.

It is important that I state that, under section 10(2) Copyrights Act of 2004, there is a proviso under which states “the copyright shall belong to the author, unless otherwise stipulated in writing under the contract”. ?This connotes that if a contract exists between the author of a work and his employer, which expressly states that copyright in the work shall vest in his employer, then copyright in such work shall vest in such employer. In a recent decision by the court of appeal in the case of BANIRE v. NTA-STAR TV NETWORK LTD. When the court was addressing the issue of who owns the copyright to a photograph, the court held that it is the photographer who took the photograph and not the muse in the photograph that owns the copyright. I would like to quote the exact words used by the Justices of the court of appeal: What is evident from the above provision is that the person who is a muse or the person in the photograph is not in fact the author and therefore he/she does not own copyright in the photograph. Rather it is the person who took the photograph that is the author. The Appellant by her own evidence has stated that she had a photo session with Virtual Media Network the owners of Orisun Tv and as such since Virtual Media Network took the photographs then they have authorship and as a result they have copyright of the photograph not the Appellant.

From the above quoted words of the justices of the court of appeal, we can see that although the court held that copyright was vested in the photographer, what the court actually did was to vest the copyright in the photographer’s employer. Although in this case there was no issue as to whether the copyright in the image was that of the photographer or the photographer’s employer. The issues were as regards the person in the photograph i.e. The muse.

Flowing from the above it is clear that copyright in a photograph is vested in the photographer who is the author of the work, except there is an agreement between the photographer and any person who hires or intends to hire his service that expressly states otherwise.

Possible problems that may arise as a result of the law.

When people employ the services of photographers, they would usually assume that they have the right to control the use of the photographs taken by such photographers even in the absence of any agreement to that effect. This assumption is usually based on the fact that they have paid the photographer for his services and therefore believe that they have the right to control the use of the photographs, especially since they are the ones in the photographs. Such people would go as far as instructing the photographer not to post the picture(s) on any platform. The question that comes to mind is; what if such photographer goes against their instructions and uses the photographs for whatever purpose, would such photographer be liable in any cause of action to the muse or persons who instructed and paid for the photograph(s) to be taken?

Base on the position of the copyright law I think the answer is a resounding NO! However, it need be said that instances like this could bring up issues which are different from copy right infringement. An example of such issues could be Image Right infringement[4] or questions as regards the Right to privacy of the muse which is guaranteed under Section 37 of the 1999 Constitution of the Federal Republic of Nigeria .

In a subsequent article I would be talking more about Image rights, but in the meantime, let us focus on the copyright aspect of this issue.

Moving on, let’s flip the example given above this way; what happens in a situation where for instance a brand, company or a school for example employs the services of a photographer to create photographs for them without entering into any contract in writing that vests the copyright in those images in the hands of such brand, company or school. They then go ahead to use those images created for advertisement purposes, maybe on bill boards, magazines or on any digital platform. The photographer may sue them for infringement of copy right. In the event of any such occurrences a learned Author was of the opinion that the principles of equity may be applied by the court to the effect that notwithstanding the absence of a written agreement vesting legal ownership of copyright in the commissioned work in the commissioner or employer, such commissioner or employer shall nevertheless be deemed to be the equitable owner of copyright.[5]

Conclusion.

From the foregoing it is clear that the rights of a photographer and his employer or client may clash under circumstances where there is no written contract between them. This therefore shows that it is important that there exists a contract/written agreement between the photographer and his client, employer or muse, expressly stating the rights of each party. This could be in form of a Release Agreement or any other form of contractual agreement that is legally binding.

[1] https://tradingeconomics.com/nigeria/imports/optical-photo-technical-medical-apparatus

[2]https://dictionary.findlaw.com/definition/copyright.html

[3] https://www.berkeleylegal.com.ng/2020/09/07/protection-of-intellectual-property-rights-part-1-copyright/

[4] https://www.aelex.com/protection-of-image-rights-1/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

[5] Page 65 of Nigerian Law of Intellectual property by: Adejoke.O. Oyewunmi?