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Beyond the runway: understanding the scope of image rights protection under Nigerian law

Wednesday 18 August 2021

Steve Austin Nwabueze
Perchstone and Graeys LP, Lagos, Nigeria
stevenwabueze@perchstoneandgraeys.com

Theodora Olumekor
Perchstone and Graeys LP, Lagos, Nigeria
theodoraolumekor@perchstoneandgraeys.com

Introduction

What are image rights?

An image is a physical likeness or representation of a person, animal or thing that has been photographed, painted, sculpted or made visible. 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. They incorporate the right to use a person’s personality and prevent other parties from exploiting or using that person’s image or likeness without his or her permission, and encompass the commercialisation of such rights. The hallmark of image rights is when, for example, celebrities, such as musicians, models, reality stars, actors, comedians, athletes and renowned authors develop brands attributed to their personalities.

The commercialisation of these rights are utilised by people with a vested interest in promoting their brands, services or goods that they sell to the general public. Examples include when:

  • Kylie Jenner signed a US$1,000,000 deal to serve as a brand ambassador for Puma in in 2016;
  • Derrick Rose got a US$260,000,000 endorsement deal with Adidas;
  • in Nigeria, Iyanya signed a $350,000 endorsement deal with Zinox Computers; 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.

These speak to the power of their value as people and personalities, and at the same time create an atmosphere where others can exploit this value for their own economic gain.

It is important to note that the commercialisation of these rights cannot be exploited without the consent of the person who owns such rights. There have been several cases in the United States where such high-value individuals have taken steps to protect their image rights. These include:

  • In the case of Robyn Rihanna Fenty and Others v Arcadia Group Brands Ltd and Another, Rihanna sued for the unauthorised use of her image from one of her music videos, which was sold on t-shirts by the fashion retailer Topshop; and
  • In Nigeria, Richard Mofe Damijo (RMD), a popular Nigerian actor, started a case against the online retail store, Jumia, for their unauthorised use of his image on their social media platform.

From the above, one will presume that these rights are only applicable to famous individuals, however, this would be an incorrect presumption. Every individual has rights attached to their image. However, celebrities or famous individuals tend to commercialise the use of those rights and can easily prove how the violation of those rights can infringe their reputation, goodwill and even their commercial value.

Are there specific and applicable intellectual property legislation in Nigeria?

In Nigeria, there are no specific laws that address the protection of image rights. However, there are other laws that give credence to some form of protection of these rights. These are the Constitution of the Federal Republic of Nigeria 1999, as amended, and Intellectual Property statutes.

Constitution of the Federal Republic of Nigeria/Data Protection Regulation

Section 37 of the 1999 Constitution (as amended) makes provision for the fundamental right to an individual’s privacy. This means that while an individual has the right to determine what type of personal information he or she wants disclosed to the public and in the public space, it is also his or her right to restrict third parties from exploiting such information and commercialising the same without his or her consent. In addition, there is also the Nigerian regulations on Data Protection to consider. These regulations seek to safeguard the rights of natural persons to data privacy and prevent the manipulation of personal data.

Intellectual property laws – copyright and trademark

When these image rights are turned into creativity, they become capable of being protected as intellectual property laws. What then is the extent of protection of Image rights under the Intellectual Property Laws in Nigeria? Image rights are entitled to protection under the Copyright and Trademark Laws.

Copyright is a right granted to the authors or originators of certain creative work granting them reproduction rights for a limited period. Literary, musical, artistic, cinematographic, sound recordings and broadcast work are eligible for copyright protection. This copyright protection covers both economic and moral rights. The economic rights speak to the exclusive right to control the exploitation of the copyrighted work in a manner that can inure pecuniary benefits to the copyright owner, such as the rights to reproduction, publication and performing the work in public. On the other hand, the moral rights seek to safeguard the integrity of intellectual creations as an extension to the author’s personality. Also, while the moral rights are perpetual and inalienable, the economic rights are assignable and transmissible. Thus, the fact that artistic and cinematographic films are eligible to copyright protection can equally be extended to apply to a person’s personality reproduced in a photograph, painting or sculpture. Provided that these works have been reduced to a fixed medium, they are afforded the recognised protection under the law whether or not they have been registered.

In addition, an individual’s image right can also be protected by registration at the Nigerian Trademarks Office. 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. In Nigeria, Omotola Jalade-Ekeinde MFR, a Nollywood movie icon, philanthropist and former model, has trademarked her name ‘Omotola’; Erica Nlewedim, a Big Brother reality star, trademarked the name ‘Star Girl’; and Ayo Balogun, popularly known as ‘Wizkid’, a renowned Afrobeat musician in Nigeria, has trademarked the name ‘Star Boy’. While there have been several arguments regarding the appropriateness of these acts, it should be noted that given their standing in society, their images possess such significant commercial value that can easily be exploited and, therefore, there is a need to protect these rights.

Under Nigerian law, for a name to be eligible for registration of a trademark, it must contain or consist of at least one of the following essential particulars:

  • the name of a company, individual, or firm, represented in a special or particular manner;
  • the signature of the applicant for registration or some predecessor in his or her business;
  • an invented word or words;
  • word(s) having no direct reference to the character or quality of the goods, and not being accorded to its ordinary signification, a geographical name or a surname; and
  • any other distinctive mark.

The law is different in the US. Under the US Federal Trademark law, it provides that a mark that is primarily a name cannot be protected without proof that it has acquired distinctiveness. It provides that the following factors determine the status of acquired distinctiveness:

  • whether the name is rare;
  • whether the term is the surname of anyone connected with the applicant;
  • whether the term has any recognised meaning other than as surname;
  • whether it has the look and feel of a surname; and
  • whether the stylisation of letters is distinctive enough to create a separate commercial impression.

From the aforementioned local and international law provisions/perspectives, it is clear that individuals have the right to protect their image rights through the trademark of their commercially viable names, as it will afford them a protection from economic and commercial exploitation.

Conclusion

While image rights are afforded protection under intellectual property legislation, there is still a level of uncertainty as to the degree of compensation a Nigerian court can award an aggrieved individual. For instance, most of the successful cases on this point have been won on account of the common law action of ‘passing off'. The initial first set of cases concerning image rights failed because there was no regulatory basis for the protection sought by the plaintiffs. At this point, Nigeria needs bespoke legislation on image rights protection similar to those in France and the US where such rights are totally protected.