The copyright ownership of a photograph and the image rights cum data protection rights of the photographed remain one of the most controversial and debated area of intellectual property in Nigeria. This is due to the recent decision of the Court of Appeal in Banire V. NTA - Star TV Network Limited (2021) LPELR-52824(CA) wherein the Court of Appeal upheld the copyright of the photographer against the image right of the photographed. In that case, the appellant alleged that the respondent used her pictures on billboards in Abeokuta and Akure for promotional purposes without her consent while the respondent claimed that the pictures were supplied to it by Virtual Media Networks Limited in pursuance of a Channel License Agreement. In essence a photographer has the right to commercialize photographs of a photographed without obtaining consent. This decision conflicts with the data protection rights of the Photographed under the Nigeria Data Protection Regulation 2019 whose provisions are safeguarded by section 37 of the 1999 Constitution as amended and may never stand if questioned under data protection rights law. Therefore, this write-up will discuss the ensuing friction between both rights with the aim of providing practical steps towards finding common grounds.
1. Understanding image rights
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 identity1. Image rights endows the image owner with the right to use and commercialize his or her personality to the exclusion of other persons except with where he or she grants permission. The essence of image rights lies in its commercialization which underlines the value such individuals have amassed on their personality. It is therefore understandable that individuals and celebrities will explore every legal opportunity to protect their image rights. In Nigeria, Richard Mofe Damijo (RMD) an "A" list actor once initiated an action against Jumia, an e-commerce outlet for using his image on its platform without his authorization2. In US, Robyn Rihana Fenty once took an action against Arcadia Group Brands Limited for an unauthorized use of her image3. Both locally and internationally image rights have proven to be a viable source of income and as such worth legal protection.
2. Image rights protection in Nigeria
Unlike United States of America where the law creates 'right of publicity' there is no comprehensive piece of legislation on image rights in Nigeria which makes it a bit difficult for individuals to protect their image right. However, some related laws like the Constitution of the Federal Republic of Nigeria, Nigerian Data Protection Regulation and Copyright Right Act can be relied upon to protect image right. Section 37 of the 1999 Constitution of Nigeria guarantees the privacy of citizens, their homes, telephone conversations and telegraphic communication. The Court of Appeal held in Digital Rights Lawyers Initiatives v National Identification Management Commission4 that right to privacy extends to data protection which by definition of personal data includes image or photographs that give rise to image rights.
i. Nigerian Data Protection Regulation (NDPR)
NDPR applies to image rights. Article 1.3(xix) defines personal data as any information that directly or indirectly identifies (identifiable) a natural person. No doubt image rights falls under this definition because the photograph that give rise to image right is a personal data. The regulation set out how such information must be dealt with.
ii. Copyright Act
Copyright is defined as a monopoly right which the creator of an eligible work acquires as soon as such work is put in a tangible form and which right preclude all others from the exploitation of such work without the authorization of the creator, for a specified period5. Section 1(1) of the Copyright Act provides that literary works, musical works, artistic works, cinematographic films, sound recordings and broadcasts are works that are eligible for copyright protection. Even though image rights are not expressly mentioned, cinematographic films and artistic work which includes paintings, drawings, etchings, lithographs, woodcuts, engravings and prints; works of sculpture; photographs not comprised in a cinematographic film; and works of artistic craftsmanship will includes images which gives rise to image rights. The Court of Appeal in Banire's Case stated that copyright encompasses image right. It is important to note that for literary, artistic or musical work to qualify for copyright protection, it must be original and must have been expressed in medium.
iii. Tort of passing off
The common law right of passing off applies to image rights. In Banire' case the court stated that passing off could still apply to unauthorized use of images. However, for a plaintiff to rely on the tort of passing off, such plaintiff must prove the following that:
- his or her image has acquired sufficient goodwill that can be used in consideration for money
- the third party has misrepresented to the public by using the image
- this misrepresentation caused or has the tendency of causing damages to the goodwill
3. Copyright of a photographer or image right of the Photographed
Often times when disputes between image rights and copyrights occur it is because both rights do not reside in one person. For instance, we have seen celebrities take action against photographers or some institutions for violation of image rights. At the same time, we often see photographers or the photo agencies sue celebrities for copyright infringement on photographs that bear the images of these celebrities. This is an attendant consequence of a fact that the Copyright Act6 generally assigns copyright ownership of a photograph to the author (photographer) which empowers the photographer to put the image to use to the exclusion of all other persons including the Photographed except there is a written agreement derogating this right. This was recently endorsed in the case of Banire v NTA-TV Network where the court of appeal held that copyright of photograph belongs to the photographer. The implication is that a photographer has the right to produce, reproduce and commercialize photo-images of the Photographed without his/her knowledge or consent and the Photographed cannot put such image to use without obtaining license or consent from the photographer.
4. Copyright of the photographer or the data protection right of the Photographed
The intellectual property rights which include copyright is regarded as a movable property7 safeguarded undersection 44 of the 1999 Constitution of the Federal Republic of Nigeria8. Similarly, data protection rights which includes image right is a fundamental human right under section 37 of the same Constitution. In Digital Rights Lawyers Initiative v. National Identity Management Commission9 the Court of Appeal held that personal data as provided under the NDPR is a fundamental right which is safeguarded by section 37 of the Constitution. While section 10(1) and 51 of the Copyright Act assigns copyright ownership of a photograph to the photographer which empowers him to produce, reproduce and commercialize the image without informing and obtaining consent of the Photographed. The NDPR either directly or indirectly assigns (and protects) image rights to the photographed (data subject). As stated above, the definition of personal data in the Regulation encompasses photograph and the process of producing, reproducing and commercializing amounts to data processing. The NDPR gives the photographed (data subject) control over their personal data and by Article 2.2 outlines conditions upon which any person intending to process such personal data must meet for it to be lawful. This includes that personal data must be processed lawfully, fairly and transparently. For personal data to be lawfully processed the controller must rely on at least one of the lawful bases listed in the Regulation which are: where the of the data subject has been obtained, where processing is necessary for performance of contract between the data subject and the controller (photographer) where processing is necessary for vital interest of the data subject or third party, or to comply with legal obligation or for public interest or authority. Processing is fair when data controller considers the interest and reasonable expectation of the data subjects in the processing activities. That is the processing activities must not negatively affect the fundamental rights and freedoms of the data subject. Transparency entails that the data subject must be given detailed information on what and how his or her personal data is being processed. A corollary effect would be a friction between the rights. However, no right is ever absolute and there will always room for balancing the rights. While there may not be any Nigerian caselaw on the relationship between data protection and intellectual property, in European Union, the Court of Justice of the European Union (CJEU) in Produtores de Música de Espana (Promusciae) v Telefonica de Espana SAU10, has stated that the fundamental right to property must be balanced against the protection of other fundamental rights, in particular the right to data protection.
Balancing the Rights
The rights of the parties can be balanced and the parties can achieve this in the following way:
I. Options Available to the Photographed
An image owner who intends to protect his/her image right may enter into a contract/agreement with the photographer to derogate the provision of section 10 of the copyright Act and have copyright reside in him/her or invoke his data protection rights to object to processing of the photographs. Also, the image owner should not as a matter of fact rely on data protection rights to exploit the copyright ownership of the creator without recourse.
ii. What the photographer must do to protect business interest.
We have stated above that the act of producing, reproducing and commercialising photography is deemed data processing within the definition of NDPR and by its provision, any person processing personal data must do so relying on at least any of the lawful bases listed in Article 2.2 NDPR
i. Producing and commercialising a photograph
A photographer can rely on consent to produce and commercialize photograph of a Photographed. However, the problem with consent is that the criteria for meeting up with valid consent is complex in the sense that it must be freely given, specific, informed and unambiguous. Also, a Photographed can withdraw such consent at any time and request that the photograph be deleted, and this will apply to third parties having the photograph. A photographer intending to rely on consent may create a standard consent form which the Photographed will sign prior to photoshoot. Another legal basis a photographer can rely on to produce photograph is the performance of contract between the photographer and the Photographed. Depending on the circumstances, this may be the best option for photographers since the image owner will not be able to invoke his/her right to object to processing. Although not provided under the NDPR, a photographer can rely on legitimate interest to produce photograph and this may take place where a photographer is invited to cover a private or public11 event. If it is a private event, it is advisable for the invitation card to contain privacy notice or have privacy notice signpost in the event area12. In these circumstances the photographer must not use the photograph out of context nor cause distress with it to the right and freedom of the photographed.
ii. Documentation and provision of privacy notice
It is important for the photographer to document the legal basis relied upon, the privacy notice and other steps taken to ensure the use of the photograph will not negatively impact on the fundamental rights and freedom of the Photographed. This is one of the ways of achieving accountability. Furthermore, the photographer should provide privacy notice to the image owner detailing how the photograph will be used except where it will be expensive or disproportionate to the purpose intended to achieve. This may be the case where there are large crowd or the Photographed cannot be ascertained or identified. It is important for the photographer to delete the image once the purpose of the photoshoot is met and not keep the image for longer than necessary.
There is no doubt on the friction between the copyright of a photographer, image right and data protection right of the Photographed. Though the Court of Appeal endorsed the copyright of a Photographer over the image right of the Photographed in Banire's Case, it is not yet uhuru for a photographer since such a photographer must balance the two rights at all times. This will require obtaining the consent of the image maker or entering into a contract for the sake. Failure on his part will result in the infringement of the image owner's right to privacy/data protection rights which he may decide to pursue before the court or petition the Nigeria Data Protection Regulator or exercise both.
1. Banire v NTA-Star TV Network Limited (2021) LPELR-52824(CA)
2. Kolapo Olapoju, ' The True Story behind RMD's Legal Dispute With Jumia', The Cable, July 27, 2016: https://www.thecable.ng/the-true-story-behind-rmds-legal-dispute-with-jumia (accessed 08.03.2022)
3. Sarah Butler, 'Rihanna Beats Topshop in High Court Battle Over Unauthorized T-Shirt', July 31,2013: https://www.theguardian.com/business/2013/jul/31/rihanna-topshop-t-shirt-court-case (08.03.2022)
4. Unreported suit no CA/IB/291/2020
5. Tony Okoroji, 'Copyright Neighouring Rights and The New Millionaires (the twists and turns in Nigeria)', TOPS LTD,1st ed., Lagos: p41.
6. Section 10(2)(3), 51
7. Section 11(1) Copyright Act
8. Musical Copyright Society of Nigeria LTD/GTE v. Compact Disc Technology LTD & Ors (2018) LCN/4568(SC)
10. Case C-275/06: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62006CJ0275
11. Public event such as sport activities
12. Rina Sond' 'Data Protection Issues For Photographers', Longmores Solicitors, October 21, 2014: https://www.longmores.law/articles/data-protection-issues-for-photographers/ (accessed 09.03.2022)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.