Understanding The Meaning And Scope Of Image Rights Protection Under Nigerian Law
By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
What is in a face? A personality? An image? Images play an indisputably vital role in 21st-century society as they convey diverse messages and acquire autonomous informational, commercial, or social value. Modern society, especially in this era of social media, is centered on images/personalities and the inherent power they possess to inspire and influence other people’s habits, decisions and ways of thinking, or in one word—living.
Some people, rightly called celebrities, have created so much value attributed to their personalities that they have become brands. This personality has made them so influential that it has created an atmosphere, where they can exploit this value for their own economic benefits.
INTRODUCTION
What’s in a face? A personality? An image? Images play a vital role in the 21st-century society, as they convey diverse messages and acquire autonomous informational, commercial, or social value. Modern society, especially in this era of social media, is centered on images/personalities, and the inherent power they possess to inspire and influence other people’s habits, decisions and ways of thinking, or in one word— living.
Some people, rightly called celebrities, have created so much value attributed to their personalities that they have become brands. This personality has made them so influential that it has created an atmosphere, where they can exploit this value for their own economic benefits.
This disquisition seeks to define the concept of image rights, its commercialization and applicability in Nigeria, and whether there are laws that protect this class of Intellectual property rights.
What are image rights?
Image rights refer to the use, appropriation, and/or exploitation of a person’s image, and include the expression of a personality in the public domain[1]. The Bailiwick of Guernsey Image Rights legislation, enables a personage to register their personality (and the rights that subsist within that personality).
Section 3 of the Ordinance[2] describes the elements of an Image Right as; voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristics or personal attribute of a personage, any photograph, illustration, image, picture, moving image or electronic or other representation (picture) of the personage, and of no other person (except to the extent that the other person is not identified or singled out or in connection with the use of the picture.
Commercialization of Image rights
The hallmark of image rights is when, for example, famous people such as actors, footballers, musicians, models, comedians, athletes and renowned authors commercialize these rights. In fact, most of the time, these celebrities can earn more revenue than they make from their regular careers.
Some examples include:
- Cristiano Ronaldo’s sponsorship deals equating to circa £37million annually, and his lifetime contract with NIKE is said to be worth circa £787million (or $ 1 billion)[3];
- Kylie Jenner’s US$1,000,000 deal to serve as a brand ambassador for Puma in 2016[4];
- Derrick Rose’s US$260,000,000 endorsement deal with Adidas;
- in Nigeria, Iyanya signed a $350,000 endorsement deal with Zinox Computers[5]; and
- in 2021, reality TV Star, Erica Nlewedim, signed multimillion-dollar deals to endorse Partner Mobile Nigeria, and became a brand ambassador of luxury jeweller Swarovski Nigeria[6].
It is therefore reasonable and legitimate for celebrities to protect these lucrative rights to their images, and prevent their unauthorized usage and exploitation. This brings to mind the cause-celebre case of Robyn Rihanna Fenty & Ors. v. Arcadia Group Brands Limited (T/A TOPSHOP) & Anor[7] where Rihanna, the music superstar, had sued for the unauthorized usage of her image from one of her music videos on T-shirts sold by Topshop which sold out in weeks. A similar case occurred in Nigeria when a popular Nigerian actor, Richard Mofe Damijo (RMD), instituted an action against the online retail store, Jumia for their unauthorized use of his image on their social media platform[8].
It should be noted that although it is mostly celebrities that exploit their image rights and have instituted and won image rights cases, this does not suggest that persons who are not celebrities have no image rights; however, the ability of a claimant to demonstrate that he enjoys goodwill and wields considerable influence are factors in image rights action. Therefore, in most cases, it is celebrities that are able to establish these factors when they seek to enforce their image rights.
Legal protection of image rights in Nigeria
While some countries have comprehensive and specific laws on image rights protection, there is no specific legislation that provides for image rights in Nigeria. This implies that a person may not be able to commercialize his image rights or may not be entitled to compensation if these rights are breached. However, there are related laws that can be applied to protect the image rights of persons. These are the Constitution of the Federal Republic of Nigeria 1999, as amended, and Intellectual Property statutes.
Constitution of the Federal Republic of Nigeria
Section 37 of the 1999 Constitution (as amended) provides that the right to privacy of citizens is guaranteed and protected[9]. According to the Black’s Law Dictionary[10], “privacy” is the quality, state, or condition of being free from public attention to intrusion into or interference with one’s acts or decisions. There are also judicial authorities protecting citizens’ right to privacy. Although what denotes privacy was not defined or specified, it could be assumed that this also extends to the image rights of an individual.
An individual, relying on the provisions of section 37 of the Constitution, may therefore sue for breach of his right to privacy if he can persuade the court to construe the constitutional right to privacy as a right not limited to the intrusion of one’s private life but extending to the appropriation of a person’s name or likeness for another’s commercial benefit.
Intellectual property laws – copyright and trademark
The Copyright Act Chapter 28, Laws of the Federation of Nigeria, 2004 protects copyrights 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.
Although what constitutes ‘work’ is not defined under this statute, the Act provides that literary works, musical works, artistic works, cinematographic films, sound recordings and broadcasts are works that are eligible for copyright protection[11].
Notwithstanding that there are no specific and express provisions on image rights protection, artistic works, and cinematographic films are eligible for protection. Artistic works have been described to include, irrespective of artistic quality, paintings, drawings, etchings, lithographs, woodcuts, engravings, and prints; works of sculpture; photographs not comprised in a cinematographic film; and works of artistic craftsmanship[12]. These provisions will therefore apply to a person’s personality reproduced in a photograph, painting, sculpture, and the likes. It may therefore be argued that an individual’s image rights may be eligible for copyright protection by virtue of the provisions above.
In addition, a person’s image rights can also be protected by registration under the Nigerian Trademarks Act[13]. For example, David Beckham and Victoria Beckham are registered trademarks, which means that their names are protected and cannot be used to sell goods or services without their authorization[14]. In Nigeria, Erica Nlewedim, a Big Brother reality star, trademarked the name ‘Star Girl’[15].
CONCLUSION
From the foregoing, it is clear that individuals have the right to protect their image rights either through copyrights or the trademark of their commercially viable names, as it will afford them protection from economic and commercial exploitation.
Nonetheless, Nigeria needs a comprehensive, bespoke legislation on image rights protection similar to those in France[16] where such rights are totally protected under specific terms.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.
Mr. Atoyebi has expertise in Technology, Media and Telecommunications Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.
He can be reached at [email protected]
CONTRIBUTOR: Patrick Emmanuel.
Patrick is a member of the Dispute Resolution Team OMAPLEX Law Firm. He also holds commendable legal expertise in intellectual property law.
He can be reached at [email protected].
[1] Intellectual Property Office, “what are image rights” (Intellectual property Office, undated) (http://ipo.guernseyregistry.com/article/103037/what-are-image-rights) accessed 21 June 2022.
[2] Image Rights (Bailiwick of Guernsey) Ordinance, 2012.
[3] “Reevaldo’s image rights agreement with Kings Cross United FC” accessed at https://www.reevaldo.com/story/image-rights on 22 June 22, 2022.
[4] L Andrew, “Celebrity Endorsement Deals with Insane Payouts” (Yahoo Finance, July 26, 2019) (https://finance.yahoo.com/news/celebrity-endorsement-deals-insane-payouts-090030383.html) accessed 20 June 22, 2022.
[5] “The biggest endorsement deals in history” (The Gentleman’s journal, undated) (https://www.thegentlemansjournal.com/biggest-endorsement-deals-history/) accessed 21 June 22, 2022.
[6]“BBNaija Erica Nlewedim signs mega multimillion deal with a phone company” https://www.kossyderrickent.com/2021/01/bbnaija-erica-nlewedim-signs-mega.html?m=1 accessed 22 June 22, 2022.
[7] Rihanna Fenty & Ors. V. Arcadia Group Brands Limited (T/A TOPSHOP) & Anor (2013) EWHC 2310 (Ch).
[8] K Ojewale and O Johnson “image rights how can I control the use of my image?” (ACAS-LAW, 4 April, 2016) (https://www.acas-law.com/storage/app/public/publication/this-day-article-04.10.2016—kike-ojewale-and–oyindamola-johnson.pdf) accessed 21 June 22, 2022.
[9] 1999 Constitution of the Federal Republic of Nigeria (as amended), S 37.
[10] 10th Edition, Black’s Law Dictionary.
[11] Copyright Act Cap 28 Laws of the Federation of Nigeria, 2004 (Copyright Act). S1(1).
[12] Ibid. S 1 (2).
[13] A Adetula, supra note 1.
[14] M Johnson, “image rights” (Rocket Lawyer, undated) (https://www.rocketlawyer.co.uk/article/imagerights.rl) accessed 21 June 22, 2022.
[15] https:// www.google.com/amp/s/punchng.com/big-brother-naija-star-erica-trademarks-nickname-star-girl/%3famp accessed 22 June 22, 2022.
[16] Terakopian “The French Privacy Law” (https://www.google.com/amp/s/photothisandthat.co.uk/2012/02/15/the-french-privacy-law/amp/ accessed 22 June 22, 2022.
