Image Rights In Nigeria; A Legal Perspective -By Oyetola Muyiwa Atoyebi & Eliot Okosun

Introduction

The protection of image rights holds significant importance within the legal framework of Nigeria, affording individuals the authority to govern the utilization of their likeness. These rights serve as a barrier against unauthorized exploitation or commercial gain derived from the portrayal of an individual’s identity without their explicit consent[1].

An image, whether captured through photography or depicted in artwork, encapsulates the essence of a person, animal, or object, thereby implicating the necessity for regulatory measures to govern its usage. Through the assertion of image rights, individuals are empowered with the means to oversee the representation of their public persona, thereby ensuring autonomy over their image[2].

This article seeks to analyze the legal framework for image rights in Nigeria, and its commercialization and also make recommendations for navigating the dynamic landscape of image rights.

Image Rights in Nigeria

The essence of image rights becomes evident when notable figures, such as musicians, models, reality television personalities, actors, comedians, athletes, renowned authors, etc., cultivate brands associated with their personalities[3].As a local illustration, in 2013, Iyanya entered into a $350,000 endorsement agreement with Zinox Computers,[4]also in 2021, the renowned reality TV personality, Erica Nlewedim, entered into multimillion-dollar agreements to endorse Partner Mobile Nigeria and assumed the role of brand ambassador for Swarovski Nigeria, a luxury jewellery brand[5]. These endorsements underscore the significant value held by celebrities and media personalities, fostering an environment that empowers both product vendors and ambassadors to leverage this value for their mutual economic benefit[6].Image rights are often likened to property rights, suggesting that aspects of an individual’s personality cannot be utilized without explicit permission, much like the protection afforded to other forms of property under the law. It is imperative to acknowledge that image rights cases have predominantly been initiated and successfully pursued by celebrities[7].

This does not imply that individuals who are not public figures lack image rights; nonetheless, the capacity of a claimant to effectively demonstrate the possession of goodwill or substantial influence may be elements to be evaluated in any legal action concerning image rights[8].

To establish infringement of image rights, the plaintiff must demonstrate the following:

1. Validity: The person suing has a legal right to their own identity or personal characteristics.
2. Infringement:
   1. Unauthorized use: The person being sued has used part of the other person’s identity or characteristics without permission in a way that makes the other person recognizable.
   1. Commercial harm: The unauthorized use by the person being sued is likely to harm the commercial value of the other person’s identity or characteristics[9].

The Legal Framework for Protecting Image Rights in Nigeria

In Nigeria, specific legislation directly addressing the protection of image rights is absent. Nevertheless, certain legal instruments provide a foundation for the recognition and safeguarding of these rights. These include the Constitution of the Federal Republic of Nigeria 1999, as amended, along with relevant Intellectual Property statutes.

1. Constitution of the Federal Republic of Nigeria

The Constitution serves as the fundamental law of Nigeria, establishing the cornerstone of the legal framework and providing the foundational basis for safeguarding privacy rights. Section 37 of the Constitution broadly guarantees and protects Nigerians’ right to privacy concerning their homes, correspondence, telephone conversations, and telegraphic communications.

The visual portrayal of an individual can be deemed private and unique to that individual. Consequently, individuals possess the right to determine the extent of personal information they divulge to the public, including their image or appearance. Moreover, individuals have the right to prohibit third parties from exploiting or commercializing such information (image) without prior consent or authorization[10].

2. Data Protection Act

Due to the widespread availability of digital information in contemporary times, unscrupulous individuals have found it convenient to appropriate the images or likenesses of prominent personalities from the internet for personal gain. Addressing this issue, the Data Protection Act of 2023, offers a remedy by endowing individuals who provide their data (referred to as data subjects) with specific rights, granting them authority over the usage of such data[11]. For instance, the Act delineates criteria for lawful data processing, emphasizing the indispensability of obtaining consent from the data subject[12]. Moreover, the Act reinforces this safeguard by stipulating that the mere silence or inactivity of data subjects does not constitute consent[13].

Notably, the Act affirms that a data subject retains the prerogative to revoke consent for the processing of their data at any juncture[14]. Additionally, Section 36 grants the data subject the entitlement to object to the processing of their data, a directive to which the data controller must promptly adhere, except where compelling public interest or legitimate reasons are at stake. However, even with this provision, any assertion of public interest or legitimate reasons must demonstrably outweigh the data subject’s fundamental rights[15].

3. Copyright Law

Under the Copyright Act[16], Image rights are afforded legal protection under copyright law. Copyright encompasses the rights of creators over their literary, musical, or artistic works, constituting a form of intellectual property granting exclusive rights to the copyright owner. Section 1(1) of the Copyright Act delineates the categories of works eligible for copyright protection, including literary, musical, artistic, cinematographic, and sound recordings. Therefore, the eligibility for copyright protection extends to artistic works and cinematographic films, which can encompass a person’s personality or image depicted in mediums such as photographs, paintings, sculptures, or cinematography. Consequently, when such works are captured in any of these mediums, they are inherently granted protection under the law, regardless of whether they have been formally registered or lodged with the Nigeria Copyright Commission[17].

4. Trade Marks Act

Section 67 of the Trade Marks Act, as amended by the Business Facilitation (Miscellaneous Provision) Act, defines a trademark as a mark that is employed or intended for use concerning goods or services. Its purpose is to establish a connection between the goods or services and an individual possessing the right, whether as a proprietor or a registered user, to utilize the mark. This definition encompasses various elements such as the shape of goods, their packaging, and combinations of colours. A registered trade mark establishes the right to identify a good or service and prevent others from imitating it. example, Wizkid, a popular Nigerian musician, registered the trademark “Star Boy,” and Omotola Jalade-Ekeinde MFR, a well-known Nollywood actress, trademarked her first name in all caps in “OMOTOLA”. This aligns with Section 5 of the Trade Marks Act which grants individuals exclusive rights to the use of a trademark in connection with specific goods or services upon registration.

5. Cybercrimes (Prohibition and Prevention) Act

The Cybercrimes (Prohibition and Prevention) Act[18] stipulates that an offence occurs when an individual utilizes a name, business name, trademark, domain name, or any other word or phrase that is registered, owned, or in use by any individual, corporation, or entity of the Federal, State, or Local Governments in Nigeria. Under the Act, unauthorized use of an image must pertain to a trademarked or copyrighted material for a violation to be established, typically in the context of online marketing and advertising. Thus, where an image enjoys protection under Nigerian trademark or copyright laws and its rights are infringed upon through computer usage, the aggrieved party is entitled to seek recourse or compensation for the breach of their intellectual property rights. Consequently, this avenue presents the most viable legal remedy for individuals whose image rights have been infringed upon in Nigeria[19].

Commercialisation of Image Rights

Image rights are a lucrative business model for celebrities, who can leverage their fame to associate their likeness or voice with a brand. This can enhance sales and visibility, while the celebrities receive royalties in return. Celebrities often earn higher revenues than their regular professions, as seen with Kylie Jenner’s $1,000,000 contract as a brand ambassador for Puma in 2016[20], Derrick Rose also secured a $260,000,000 (Two Hundred and Sixty Million Dollars) endorsement agreement with Adidas[21].

In Nigeria, recording artist Iyanya was reportedly engaged in a $350,000 (Three Hundred and Fifty Thousand Dollars) endorsement agreement with Zinox Computers in 2016[22].A recent illustration of the commercialization of image rights involves Cardi B’s submission for trademark registration of two signature catchphrases, namely “Okrrr” and “Okrr,” which she has popularized. This initiative aims to assert control over the commercial usage of these phrases for sale and promotional purposes.

Celebrities are expected to protect their image rights and prevent unauthorized use, as demonstrated in the legal case of Robyn Rihanna Fenty & Others v. Arcadia Group Brands Limited (Topshop) & Another,[23]Rihanna sued Topshop for unauthorized use of her music video image on t-shirts, which sold out quickly. Meanwhile, actor Richard Mofe Damijo filed a lawsuit against Jumia for unauthorized appropriation of his likeness on their social media platform, both cases involving unauthorized use of their image rights.[24]

Recommendations for Enhancing Image Rights Protection

1. Legislative Reform: Legislative reform is imperative in Nigeria to address the dynamic landscape of image rights, particularly in light of the escalating complexities brought about by advancements in digital technologies. Specific legislation is required to amend already existing laws that will provide for the protection and commercialization of image rights, offering unequivocal definitions, guidelines, and recourse for infringement. This legislative framework will be aimedat enhancing clarity and legal assurance for both rights holders and users alike.
2. Awareness and Education: Efforts should be made to raise awareness among individuals, especially celebrities and public figures, about their image rights and the legal mechanisms available for their protection. Education campaigns can help empower individuals to assert their rights and take appropriate legal action when necessary.
3. Strengthening Enforcement Mechanisms: The enforcement of image rights requires effective mechanisms to deter infringement and provide remedies for rights holders. This may involve enhancing the capacity of law enforcement agencies, streamlining legal procedures, and imposing meaningful penalties for violations.
4. Collaboration with Industry Stakeholders: Collaboration between rights holders, industry stakeholders, and government agencies is essential to develop best practices, codes of conduct, and industry standards for the commercialization of image rights. This collaboration can help foster a fair and transparent marketplace while protecting the interests of all parties involved.

Conclusion:

The commercialization of image rights in Nigeria presents both opportunities and challenges for rights holders, businesses, and consumers. While it can generate economic value for celebrities and brands, it raises legal and ethical concerns about privacy, consent, and fair competition. The absence of specific legislation highlights the need for comprehensive legal reforms to ensure adequate protection and enforcement mechanisms. Establishing clear legal frameworks, raising awareness, and fostering collaboration among stakeholders can create a responsible and ethical commercialization environment.

Ultimately, the protection of image rights is a legal and moral obligation to uphold individual rights and dignity in a digitalized world. Policymakers, businesses, and society must collaborate to balance innovation, economic growth, and respect for human rights and dignity in a digitized world.

KEYWORDS:

image rights, commercialization, Nigeria, legal perspective, celebrity, endorsements, privacy rights, data protection, copyright law, trademarks, cybercrimes, legislation, enforcement mechanisms, awareness

SNIPPET:

The protection of image rights holds significant importance within the legal framework of Nigeria, affording individuals the authority to govern the utilization of their likeness. These rights serve as a barrier against unauthorized exploitation or commercial gain derived from the portrayal of an individual’s identity without their explicit consent.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Intellectual Property Law and Practice, 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 Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Eliot Okosun

Eliot is a member of the Commercial and Corporate Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Intellectual Property Law and Practice.

He can be reached at okosun.eliot@omaplex.com.ng

[1]Prince-Alex Iwu (2015) The Legal Regime for Enforcement of Image Rights – A Nigerian Question available at https://www.linkedin.com/pulse/legal-regime-enforcement-image-rights-nigerian-question-iwu/ acecsssed march 2024.

[2] Ibid.

[3]Steve Austin Nwabueze, Theodora Olumekor(2021) Beyond the runway: understanding the scope of image rights protection under Nigerian law (Perchstone and Graeys LP, Lagos, Nigeria) available at https://www.ibanet.org/image-rights-protection-nigerian-law  accessed March 2024.

[4]The Legal Regime For Image Rights Protection Under Nigerian Law (2022) by Idara Etiebet

(S.P.A. Ajibade & Co.) available at https://www.mondaq.com/nigeria/trademark/1200696/the-legal-regime-for-image-rights-protection-under-nigerian-law accessed March 2024

[5] Amaka Odozi, ‘Erica Nlewedim Bags Endorsement Deal With Mobile Phone Company’ available at  https://www.informationng.com/2021/01/erica-nlewedim-bags-endorsement-deal-with-mobile-phone-company.html accessed March 2024.

[6]Ibid.

[7] Oluwafunmilayo Mayowa; A reviewofsomelegalissuesarisingfromtheuseofcelebrityimagesforcommercialpurposesinNigeria (SPA Ajibade& CO) available at https://spaajibade.com/a-review-of-some-legal-issues-arising-from-the-use-of-celebrity-images-for-commercial-purposes-in-nigeria-oluwafunmilayo-mayowa/ accessed March 2024.

[8]Ibid.

[9]S. Hines and C. Steiner (2012) “Life After Death- Right of Publicity Law” available at https://www.artlawgallery.com/2012/04/articles/intellectual-property-copyright-and-moral-rights/life-after-death-right-of-publicity-law/accessed March 2024.

[10] Ibid.

[11] Ibid.

[12]Section (25) Data Protection Act of 2023

[13] Section (26) Data Protection Act of 2023.

[14]Section (35) Data Protection Act of 2023.

[15] L Andrew, ‘Celebrity Endorsement Deals with Insane Payouts’ (Yahoo Finance 2020) available at https://finance.yahoo.com/news/celebrity-endorsement-deals-insane-payouts-090030383.html?guccounter=1 accessed March 2024.

[16]Section 1(1) Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004.

[17]The Nigerian Copyright Commission is the body responsible for all matters affecting copyright in Nigeria including the administration, regulation, enforcement and prosecution under the Copyright Act. See section 34 of the Copyright Act.

[18]Section 25 of the Cybercrimes (Prohibition and Prevention) Act, 2015.

[19]Ibid.

[20]Ibid.

[21]Noauthor ‘The Biggest Endorsement Deals in History’ (The Gentleman’s Journal, undated) available at https://www.thegentlemansjournal.com/article/biggest-endorsement-deals-history accessed March 2024.

[22]Davidson  Oturu PROTECTION OF IMAGE RIGHTS (PART 1) Ǽ L E X (2019) available at https://www.aelex.com/wp-content/uploads/2019/10/protection-of-image-rights.pdf  accessed March 2024.

[23]Rihana Fenty & Ors. v. Arcadia GroupBrands Limited (T/A TOPSHOP) & Anor [2013] EWHC 2310 (Ch).

[24] KOjewale and O Johnson ‘Image Rights How Can I Control the Use of My Image?’(ACAS-LAW, 4 April, 2016) available at  http://www.acas-law.com/storage/app/public/publication/this-day-article-04.10.2016—kike-ojewale-and–oyindamola-johnson.pdf accessed March 2024.