Image Rights and IP in Nigeria

Introduction

Businesses rise and fall as a result of how they deal with their intellectual property among other things. The intellectual property of a business includes trade marks, patents, designs and copyrights. While the above may be true for businesses, it may not be for personalities. It is undoubtedly the fact that celebrities across various human endeavours develop strong personalities that may create an economic value around their image especially when expressed in the public domain. This is aptly expressed in celebrity endorsements of products and services. An image includes a physical likeness or representation of a person, animal, or thing, photographed, painted, sculptured, or otherwise made visible. Image rights refers to the control over an image by the personality whose image is portrayed or by the image’s creator. The provision of image rights in law enables the definition, valuation, commercial exploitation and protection of image rights associated with a person or thing.¹

It is important to point out from the outset that while legal issues arising from the unauthorised production, reproduction and use of images may be considered to be so closely connected to intellectual property especially trademarks and copyrights, it also cuts across several other areas of law as may be defined by jurisdictional laws

Image Rights in Nigeria

There is no known law specifically governing image rights in Nigeria. However, section 37 of the 1999 constitution of the Federal Republic of Nigeria (as amended)² provides for rights of privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. The right to privacy and family life is a part of the fundamental human rights of every citizen which as enunciated by Nigerian courts in several decided cases³ cannot be waived. With the recent international acclaim accruing to Nigerian musical acts and artists and the subsequent increase in celebrity endorsements by businesses, there is every reason to believe that issues bordering on image rights of celebrities will soon start to crop up in legal discourses and legal actions instituted in our courts for imageright infrngements among others. Under Nigerian copyright law, the maker of an image has the rights over the use to which the image may be deployed. Properly put, a photographer has a right over the pictures taken by him except where it is made under a work for hire relationship. However, there may be complexities to what seems rather straightforward. For example, can a sitting Nigerian President use the image of a Nigerian representative taken at a sports mundial to enhance his electoral prospects in a general election? Is it legally permissible 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 consent or authorisation? These examples are not exhaustive. In the instant case, as there are no statutory authorities specifically governing image rights in Nigeria, celebrities may not be afforded the maximum exploitation of the commercial value of their images due to unauthorised exploitation. Furthermore, there is no known judicial authority on image rights in Nigeria. Consequently, it could be argued that where a selfie was used for advertisement or marketing purposes without due authorisation, there may not be compensation under Nigerian law if an action is instituted against the unauthorised user under image rights. Notwithstanding the aforesaid, where a person’s image is registered as a device at the Nigerian Trade Marks Office, an unauthorised use of that device would be regarded as an infringement under the Nigerian Trade Marks Act.

Image Rights in  USA

Generally referred to as Publicity Rights⁴, various states in the United States of America have developed a robust legal framework to prevent the exploitation of the economic benefits attached to the use of a person’s image. The fact that an action against an unanthorised use of a claimant’s image may have close links with trademarks or copyrights posits a potential overlap with Federal laws. The New York’s Court of Appeal decision in ROBERSON V. ROCHESTER FOLDING BOX COMPANY 171 N.Y. 538 (1902)⁵ where the Court failed to recognise the claimant’s right of privacy in her images circulated by the Defendant spurred the enactment of Sections 50 and 51 of the New York’s Civil Rights Law. The aforementioned sections make it a misdemeanor to use in advertising or trade without consent, the name, picture or protrait of a person. With this development, over 30 states now recognise image rights either in common law or under statute in the United States of America.

Image Rights in  UK

While the United Kingdom has helped shaped the laws of Nigeria in many areas as a result of the colonial roots, it is trite that where there are no local laws covering a particular subject or dispute, foreign decisions can be of a persuasive effect in Nigerian courts.⁶  The decision of the Chancery Division of the English High Court of Justice in ROBYN RIHANNA FENTY & Ors v. ARCADIA GROUP BRANDS LIMITED (T/A TOPSHOP)  ANOR [2013] EWHC 2310 (Ch)⁷ gives us a clear view into the state of English law in respect of image rights. In this passing off action, the Defendant, a well known fashion retailer,started selling a t-shirt with the Claimant’s image in March 2012. The image in dispute was a photograph taken by an independent photographer. Topshop had a licence from the photographer who took the Claimant’s pictures, it did not however have a licence from the Claimant. The Claimant contended that the sale of this t-shirt without her permission infringed her rights. At the conclusion of the trial, the Court found for the Claimant when it held in the following words

“The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However the sale of this image of this person on this garment by this shop in these circumstances is a different matter. I find that Topshop’s sale of this Rihanna t-shirt without her approval was an act of passing off.”⁸

In the earlier part of the judgment delivered by Judge Birss on paragraph 2, he held as follows:

“It is important to state at the outset that this case is not concerned with so called “image rights”. Whatever may be the position elsewhere in the world, and however much various celebrities may wish there were, there is today in England no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image”.

This decision was affirmed on appeal. Noticeably, while there is no known law guaranteeing image rights in the United Kingdom, the state of the law in respect to image rights in the United States of America is settled.

In Nigeria, a possible legal route for detterence against the unauthorised use and exploitation of the economic benefit in an image may reasonably lie in the Cybersecurity and Information and Protection Act. According to the provisions of this Act, an offence is committed where such a person uses a computer to violate any intellectual property right protected under any law or treaty applicable in Nigeria. For an action to lie under Cybersecurity and Information and Protection Act, the image used without authorisation must have been either trademarked or copyrighted and the use of such image would likely relate to online marketing and advertisement.⁹ Hence where an image is protected under the relevant trademark or copyright laws in Nigeria and the right vested in the proprietor by such registration is violated through the use of a computer, the affected person may rightfully seek redress or compensation for the violaton of his intellectual property right. This would seem to be the best legal redress available to anyone whose image rights have been violated in Nigeria.

It is expected that Nigerian Courts would take up the challenge whenever they are called upon to develop this area of the law through judicial activism.

1. http://ipo.guernseyreregistry.com/article/103037/What-are-Image-Rights accessed on July 22, 2014
2. S.37 of the Constitution of the Federal Republic of Nigeria as amended
3. Ezedukwa v. Maduka & Anor (1997) LPELR-8062 (CA); FRN v. Daniel (2011) LPELR-4152 (CA)
4. In the Estate of Elvis Presley v Russen (513 F Supp 1339 (1981), 1353); Brotman J. defined the ‘right of publicity’ as “…the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.”
5. Accessed at http://www.lawnix.com/cases/roberson-rochester.html on April 28, 2015
6. Okon v. State (1988) 1 NWLR (Pt. 69) 172; Olafisoye v. FRN [2004] 4n.w.l.r (Pt. 864) 613
7. Accessed at http://www.bailii.org/ew/cases/EWHC/Ch/2013/2310.html on July 12, 2014
8. Rihanna v. Topshop (Supra) at para 75
9. S.21 of the Cybersecurity and Information Protection Act