Nigeria: The Legal Regime For Image Rights Protection Under Nigerian Law

Introduction

There is a strong tendency for the public to hop on goods or services when the image of a relatable celebrity or popular face is attached to or affiliated with any advert or promotion of such goods or services. The exploitation of image rights especially for commercial purposes had commenced at a solely paper-based time when the use of pamphlets, banners, paper-flyers etc., projected the images of popular personalities which commanded authority and where such image identifies with a product or service, as this signified their approval of the authenticity and use of such product or service.

In recent times, image rights have been gaining more prominence owing to the increasing frequency of the exploitation of these rights alongside the misuse of technology in the 21st century. With easy accessibility to the internet, images of popular personalities are mostly projected on mobile or digital devices for the purposes of advertisement and promotion directed at consumers, without obtaining the consent of such a popular personality.

In considering this development and addressing the legal guidelines for regulating the exploitation of image rights, this article seeks to examine how image rights are protected under Nigerian laws. This article will specifically consider the extant provisions of the law, and other legal enactments that address image rights indirectly, in order to weigh the adequacy and impact of protection of image rights under Nigerian Laws.

1. What are Image Rights?

Image rights have been described as the expression of a personality in the public domain.¹ They refer to the use, appropriation and/or exploitation of a person's image. They incorporate the right to use a person's personality while preventing other parties from exploiting or using such image or likeness without permission. The concept also encompasses the commercialization of such rights.² A popular use of image rights is when celebrities engage the commercial media to develop brands attributed to their personalities. The commercialization of these rights is utilized by people with vested interests in promoting and authenticating the brands, services, or goods that they sell to the general public.

As local examples, Iyanya signed a $350,000 endorsement deal with Zinox Computers;³ and in 2021, popular reality TV Star, Erica Nlewedim signed multimillion dollar deals to endorse Partner Mobile Nigeria, and became a brand ambassador of luxury jeweler Swarovski Nigeria.⁴ These endorsements speak to the power of their value as celebrities and media personalities, and creates an enabling environment for both vendors and ambassadors of certain products to exploit this value for mutual own economic gains.

It is important to note that every individual has rights attached to their image and are entitled to the protection and enforcement of these rights. Celebrities or famous individuals tend to commercialize the use of these image rights with greater ease as they have been able to create value for the use of their images, which cannot be exploited without their consent. In a bid to enforce these rights, celebrities have proven how the violation of these rights can damage their reputation, goodwill and even their commercial value. There have been several instances where such high-value individuals have taken steps to protect their image rights such as in the case of Robyn Rihanna Fenty v Arcadia Group Brands Ltd,⁵ which will be discussed in-depth later in this article. Furthermore, in Nigeria, Richard Mofe Damijo, [RMD] a popular actor, recently took legal action against the online retail store, Jumia, for unauthorised use of his image on their social media platform.⁶

Recently, a Nigerian comedian, Chukwuemeka Emmanuel Ejekwu, popularly known as Mr. Funny or Oga Sabinus, has expressed his intention to sue UAC Foods for N100 million for using a cartoon-split image of himself (a caricature of the comedian) in a commercial advert for 'Gala' sausage roll without his consent.⁷

2. The Legal Framework for Image Rights Protection in Nigeria

In Nigeria, there are no specific laws designated for 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 ('the Constitution'),⁸ Intellectual Property statutes and Data Protection laws.

2.1 Constitution of the Federal Republic of Nigeria

The Constitution is the grundnorm of the Nigerian legislative sphere and provides the foundational basis for the protection of one's privacy rights in Nigeria. Section 37 broadly guarantees and protects the right of Nigerians to privacy with respect to their homes, correspondence, telephone conversations and telegraphic communications.

The pictorial representation of an individual can be described as private and peculiar to that individual. Hence, an individual has the right to determine what type of personal information they disclose to the public. This personal information also includes the image or appearance of a person. It is also a person's right to restrict third parties from exploiting and/or commercializing such information (image) without prior consent or approval.

2.2 Data Protection Regulation

The advancement and disruption introduced by sophisticated technologies in the 21st century has created easy accessibility to most individuals' information especially through social media platforms like Facebook, Twitter, Instagram that exposes the pictorial representation of these individuals tagged as 'profile picture' or 'image upload'. This avenue of digital accessibility has enabled certain fraudulent persons to poach the pictures or images of popular personalities to aid advertisement or promotion of any product or service for commercial gain.

On 25th January 2019, the National Information Technology Development Agency (NITDA) commendably issued the Nigeria Data Protection Regulation⁹ as a subsidiary federal regulation pursuant to its powers under the NITDA Act 2007.¹⁰ The NDPR 2019 specifically addresses Data Privacy and Protection in Nigeria. The Regulation, in a bid to regulate the constituents of data protection and privacy, introduced novel methods to ensure compliance with its innovative data protection and privacy framework for organizations that collect, process, store, transfer and retain personal data.¹¹

Article 1.3 (xix) of the NDPR 2019 provides for the definition of personal data in the following terms:

One of the objectives of the NDPR 2019 aims to safeguard the rights of natural persons to data privacy, preventing manipulation of personal data and fostering confidence through the safe conduct of transactions involving exchange of personal data.¹²

The NDPR 2019 applies to all transactions intended for the processing of personal data, notwithstanding the means by which the data processing is being conducted or intended to be conducted in respect of natural persons in Nigeria.¹³ It also applies to natural persons residing in Nigeria or Nigerian citizens residing in foreign jurisdictions.¹⁴ The definition section of the NDPR 2019, describes data processing to mean "any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction".¹⁵ Article 2.1 provides that such personal data is to be collected and processed in accordance with specific, legitimate and lawful purpose consented to by the Data Subject.

The NDPR 2019 also confers certain rights on persons (data subjects) that provide their personal data to ensure that they exercise certain controls over the use of their personal data. Article 3.1 of the NDPR further outlines the rights of data subjects to include the right to information about their personal data, right to access their personal data, right of rectification of their personal data, right to withdraw consent, right to object, right to data portability and right to be forgotten, as examples.

In light of this, an aggrieved individual whose image or personal data is fraudulently used for commercial gains and without consent, can sue for redress under the provisions of the NDPR 2019.

2.3 Intellectual Property Laws – Copyright Law

Under the Copyright Act,¹⁶ image rights are entitled to legal protection. Copyright is a legal term used to describe the rights that creatives have over their literary, musical or artistic works. It is a type of intellectual property that confers exclusive right on the copyright owner and excludes any other person from reproducing or exploiting the work without the authorization of the copyright owner. Section 1(1) of the Copyright Act provides that the following listed works qualify for copyright protection: literary, musical, artistic, cinematography and sound recordings. Thus, the fact that artistic works and cinematographic films are eligible for copyright protection can equally be extended to apply to a person's personality/image reproduced in a photograph, painting, sculpture or in cinematography. In this regard, where these works have been reduced to one of these mediums, they are afforded the recognised protection under the law irrespective of whether or not they have been registered or lodged at the Nigeria Copyright Commission.¹⁷

2.4 Intellectual Property Laws – Trademark Law

The Trade Marks Act defines what constitutes a "mark" to include; a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof.¹⁸ A registered trademark gives a brand or individual the exclusive rights to identify a product or service with that name and bars others from copying or using same. The unauthorized exploitation of such indicia of trade will amount to an infringement of the registered trademark. A registered trademark can be used in the protection of one's image rights. For example, Omotola Jalade-Ekeinde MFR, a popular Nollywood actress, trademarked her first name 'Omotola'¹⁹ and Ayo Balogun, popularly known as 'Wizkid', a well-known musician in Nigeria, trademarked the name 'Star Boy'.

2.5. Cybercrimes (Prohibition and Prevention) Act

The Cybercrimes (Prohibition and Prevention) Act²⁰ provides that an offence is committed where a person uses a name, business name, trademark, domain name or other word or phrase registered, owned or in use by any individual, body corporate or belonging to either the Federal, State or Local Governments in Nigeria. For an action to lie under the 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. 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 violation of his intellectual property right. Thus, this would seem to be the best legal redress available to anyone whose image rights have been violated in Nigeria.

3. A comparative analysis of the protection of image rights under other jurisdictions

In many jurisdictions such as the United States, Germany, France and Hungary, there is express statutory protection against the unauthorised commercial use of an individual's image by a third party in the context of publicity or personality rights.²¹ In the US, these rights are known as the Right of Publicity. Under the Indiana Statute, for instance, persons entitled to this right of publicity are called "Personalities" (otherwise known as Celebrities).²²

English law provides no statutory protection for the infringement of image rights. However, there are some decided cases in the United Kingdom on the subject matter which presents us with a clear view into the present position of English law in respect of image rights and which can be of persuasive effect in Nigeria.²³ In Robyn Rihanna Fenty v. Arcadia Group Brands Limited,²⁴ the Defendant, a well-known fashion retailer, started selling a t-shirt with the Claimant's image. The image in dispute was a photograph taken by an independent photographer. The Defendant, Topshop, had a licence from the photographer who took the Claimant's pictures; but it did not have a licence from the Claimant. The Claimant contended that the sale of this t-shirt without her permission infringed her rights.²⁵ The Court found for the Claimant when it held in the following words:

This judgment was upheld on appeal. It is worthy of note that Judge Briss in his Judgment above, had earlier clarified that this case was one of passing off and not an infringement of Image Right stricto sensu because according to him:

Thus, this shows that image rights are not recognised under English law. Instead, such rights are protected under the law of passing off. In this case, the court held that the plaintiff had ample goodwill to succeed in a passing off action because the plaintiff was a world-famous pop star who ran very large merchandising and endorsement operations and was regarded as a style icon by many people.

4. Conclusion

Overall, it is commendable that there are an array of laws and regulations by which a person can protect their image rights. However, it is clear that the protection of image rights is an area of law that is still in its infancy in Nigeria. The Nigerian courts need to take initiative to enforce image rights as is done in many other jurisdictions. Furthermore, Nigeria needs bespoke legislation on image rights protection. The National Assembly needs to consider enacting a federal Act or an enabling statute that strictly addresses this matter. This development will show that Nigeria takes such laws seriously and will serve as a deterrence for future acts of exploitation of a person's image rights.

Footnotes

1. http://ipo.guernseyregistry.com/article/103037/What-are-Image-Rights accessed on 11th February 2022.

2. Ibid.

3. Deolu, 'Iyanya Signs $350,000 Endorsement Deal With Zinox Computers' https://www.informationng.com/2013/08/photos-iyanya-signs-350000-endorsement-deal-with-zinox-computers.html accessed on 11th February 2022.

4. Amaka Odozi, 'Erica Nlewedim Bags Endorsement Deal With Mobile Phone Company' https://www.informationng.com/2021/01/erica-nlewedim-bags-endorsement-deal-with-mobile-phone-company.html accessed on 11th February 2022.

5. Robyn Rihanna Fenty v Arcadia Group Brands Ltd (T/A Topshop) [2013] EWHC 2310 (Ch).

6. Kolapo Olapoju, 'The true story behind RMD's legal dispute with Jumia' https://www.thecable.ng/the-true-story-behind-rmds-legal-dispute-with-jumia accessed on 11th February 2022.

7. Gbenga Odugbemi (2022), Oga Sabinus v. Friesland Foods & UAC of Nigeria Plc: A Legal Opinion on the Alleged Intellectual Property Misuse. Available at SSRN: https://ssrn.com/abstract=4124929 accessed on 6th June 2022. Mr. Ejekwu has also expressed his intention to sue Friesland Foods Wamco Nigeria Plc (the makers of Peak Milk) for the infringement of his registered trademark— "Something Hooge".

8. The Constitution of the Federal Republic of Nigeria 1999 (as amended). Act No. 24, 5 May 1999.

9. See Nigeria Data Protection Regulation (NDPR), 2019, available at: https://ndpr.nitda.gov.ng/Content/Doc/NigeriaDataProtectionRegulation.pdf accessed on 11th February 2022.

10. National Information Technology Development Agency (NITDA) Act 2007, Act No. 28, published in the Federal Republic of Nigeria Official Gazette No. 99 Vol. 94 Lagos 5th October 2007.

11. See para. 4.2, NDPR Implementation Framework.

12. Article 1.1 NDPR.

13. Article 1.2 (a) NDPR.

14. Article 1.2 (b) NDPR.

15. Article 1.3 (xxi) NDPR.

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 67 of the Trade Marks Act, Cap T13 (Laws of the Federation of Nigeria (LFN) 2004).

19. Jayne Augoye, 'Actress Omotola Jalade-Ekeinde trademarks first name' available at: https://www.premiumtimesng.com/entertainment/nollywood/443686-actress-omotola-jalade-ekeinde-trademarks-first-name.html accessed on 11th February 2022.

20. Section 25 of the Cybercrimes (Prohibition and Prevention) Act, 2015, available at: https://www.cert.gov.ng/ngcert/resources/CyberCrime__Prohibition_Prevention_etc__Act__2015.pdf accessed on 5th May 2022.

21. Corinna Corrs and Peter Mezei, 'Image Rights: Exploitation and Legal Control in English and Hungarian Law' available at: https://www.researchgate.net/publication/314690629_Image_Rights_Exploitation_and_Legal_Control_in_English_and_Hungarian_Law accessed on 4th May 2022.

22. The Statute defines a Personality as a living or deceased natural person whose name, voice, signature, photograph, image, gesture etc. has commercial value.

23. Oluwafunmilayo Mayowa, A Review Of Some Legal Issues Arising From The Use Of Celebrity Images For Commercial Purposes In Nigeria 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/#_ftn12 accessed on 04/05/2022.

24. Ibid, 6.

25. A. Adetula, (2016) "Image Rights and IP in Nigeria" available at: http://barcode.stillwaterslaw.com/1.1/2015/12/21/image-rights-and-ip-in-nigeria/ accessed on 4th May 2022.

26. Ibid.

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.