Photography and Image Rights Usage : Who Owns The Copyright? Aisha Idris

In my final year in the university, I wrote my project on Entertainment Law in Nigeria, focusing on the need to incorporate Image Rights Usage into Nigerian laws. That same year, an acquaintance used my picture to market a Ponzi scheme, claiming I was receiving $2000 every week from the scheme. Some persons almost fell prey to the scam but reached out to me before investing any of their money. I was shocked and angry especially because I could have been roped into a criminal activity I knew nothing about. At the time, I was not sure what action I could have taken against him for using my image and reputation against my consent and to his advantage. Thankfully, this article seeks to educate readers on the complexities involved in photography vis-à-vis copyright law and image protection/usage.

What is Copyright?

Copyright is a legal term describing ownership of control of the rights to the use and distribution of certain works of creative expression, which would include photographs, books, videos, motion pictures, musical compositions, etc. It can also be defined as the exclusive and assignable legal right, given to the originator for a fixed number of years, to use, ?print, publish, perform, film, or record literary, artistic, or musical material.

The Nigerian Copyright Act is Nigeria’s principal enactment on the subject matter while the regulatory body is the Nigerian Copyright Commission (NCC). The Act permits the holder of a copyrighted work to reproduce the work in any material form, publish the work, perform the work in public, produce, reproduce, perform or publish any translation of the work, make any adaptation of the work while the Commission is primarily responsible for the registration of same. It is essential to state that registering a copyright is not a precondition for the work to be protected. Hence, copyright may not need to be registered. The rights enjoyed simply activate automatically when the work is created. However, registering copyright with the NCC prevents others from copying the work and protects the author from any infringement.

What is Image Rights Usage?

Image rights or publicity rights refers to a person’s right against misappropriation of his name, likeness, physical appearances, nicknames, pictures, personal slogans etc. Put simply, it is the right of a person to control the public’s commercial exploitation of a person’s identity.

In Nigeria, there is currently no regulatory framework governing image rights and its usage.

The Nexus Between Photography, Copyright Law and Image Rights Usage

In 2017, Kim Kardashian, the American reality TV star, was sued for copyright infringement when she posted a picture of herself without permission from the photographer. Similarly, Gigi Hadid, a model was also sued in 2019 when she posted one of her images on her Instagram page without the photographer’s permission.

In Nigeria, Section 39 of the Copyright Act states that “artistic work” includes photographs not comprised in a cinematographic film and “author” in the case of photographic work, means the person who took the photograph. ?Section 9(2) of the Copyright Act also states that where a work-

(a)????????????Is commissioned by a person who is not the author’s employer under ???a contract of service of apprenticeship; or

(b)????????????Not having been so commissioned, is made in the course of the author’s employment,

the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under contract.

From the foregoing, it is clear that the position of the law is that the photographer owns the copyright to an image. This then begs the question of whether or not ownership of this intellectual property passes from the photographer to the person being photographed when he is paid to take them. No copyright is passed where a photographer is contracted by someone who is not his employer to create images unless there is an express written agreement to that effect. The legal implication of this is that the photographer owns the intellectual property rights of the photograph he took of you and can sell your images to a third party without your consent.

This was the case in BANIRE v. NTA-STAR TV NETWORK LTD (2021)LCN/15036(CA) where the Claimant/ Appellant, Mrs Banire, stated that she had a photo session with Virtual Media Network, which she consented to and even asked to be given her own copies of the pictures. The Claimant filed a suit at The Federal High Court Abuja, against NTA-STAR TV NETWORK LTD for using her images/photographs on billboards along the streets of Akure and Abeokuta for promotional purposes without her express authorization. She further Claimed the sum of N50million for the infringement of her image rights and Intellectual property rights. The Defendants/Respondents stated that the pictures were supplied to them by Virtual Media Network (VMN) due to the Channel License Agreement between them. The Court of Appeal upheld the judgment of the Federal High Court, stating that the copyright belonged to Virtual Media Network and not the Appellant. The Court also went ahead to state that the concept of image rights was non-existent in Nigeria’s jurisprudence.

The judgement of the court in this case may encourage photographers to take pictures of their unsuspecting clients and sell them to third parties without their permission first obtained. What then can such persons do to protect themselves against this violation of their privacy and image rights?

Protection of Image Rights in Nigeria

In the United States of America, the position of the law is somewhat different in the sense that although the photographer owns the copyright to the photograph, he can not make use of the photograph for commercial purposes without the express consent of the model. Unfortunately, this is not the case in Nigeria but here are a few ways to protect your image rights in Nigeria.

Get your photographer to sign an agreement passing the copyright in the images to you. This way, you have invoked the provisions of the Copyright Act and your images can not be commercialized without your consent. If the photographer breaches this agreement, he will be liable for both breach of contract and copyright infringement. There may be a clause in the agreement permitting the photographer to use the image to promote his business or use the images for editorial purposes but any form of commercialization without prior consent should be prohibited.

Another means by which image rights can be protected would be by taking legal action against persons who unlawfully commercialize ones image. However, instead of relying on violation of image rights as a cause of action, a litigant in Nigeria should rely on existing provisions of?law such as Section 37 of the Nigerian Constitution which guarantees all individuals the right to privacy or the National Data Protection Regulation 2019 (NDPR) enacted by the National Information Technology Development Agency (NITDA). The regulation allows Data Subjects (in this case, the person in the image) to file a complaint to NITDA where there is a breach of their privacy. This breach would occur where a Data Controller (in this case, the photographer) makes use of the personal data (image) of the Data Subject without consent.

In cases of impersonation such as the case between Richard Mofe Damijo and Jumia, the aggrieved party can sue under the tort of passing off by proving the following as laid down by the English courts in the case of Rihanna Fenty vs. Arcadia Group (t/a Topshop):

·??????Existence of goodwill or a reputation in the trademark

·??????Deception of the public due to a misrepresentation; and

·??????Actual or potential damage to the plaintiff.

Conclusion

Just as the existence of a legal right can not be absolute because of the overlapping of other persons right, the rights bestowed on the photographer by the Copyright Act cannot alienate the right of the muse to personal privacy. ?Yes, the photographer owns the copyright to the image and can exercise all intellectual property rights over same. However, the right of the photographer stops where it becomes a breach of the muse’s personal privacy. No persons pictures should be used for commercial purposes without their express consent. I cannot imagine the shock of walking on the streets and seeing your pictures on a billboard knowing full well you never consented for your images to be used in such a manner.

Reference List

Nigerian Copyright Act, 1988 (Cap C28 Laws of the Federation 2004)

National Information Technology Development Agency (NITDA), “Nigeria Data Protection

Regulation 2019: Implementation Framework” Available at www.nitda.gov.ng

Jason Hahn, “Photographer or model: Who owns the image?” available at <photofocus.com>

ISIKIMA, PAMELA GLORY “COPYRIGHT IN PHOTOGRAPHS AND IMAGE RIGHTS IN NIGERIA: BANIRE V NTA- STAR TV NETWORK LTD AS A CASE STUDY” available at https://www.academia.edu/53370837/COPYRIGHT_IN_PHOTOGRAPHS_AND_IMAGE_RIGHTS_IN_NIGERIA_BANIRE_V_NTA_STAR_TV_NETWORK_LTD_AS_A_CASE_STUDY?sm=b

LSP049: Ownership of Photographs under the Nigerian Copyright Act , available at https://thelegalstandpoint.law.blog/2021/09/23/lsp049-ownership-of-photography-under-the-nigerian-copyright-act/#:~:text=Under%20the%20act%2C%20the%20owner,photographer%20who%20took%20the%20picture.

“Overview of Copyright Law and Copyright Registration in Nigeria” available at https://www.mondaq.com/nigeria/copyright/983450/overview-of-copyright-law-and-copyright-registration-in-nigeria