When the image of a celebrity is featured in an advertisement or some other kind of promotion, there is a high possibility that such an image will receive a wide-spread audience. The vastness of this audience exposes such a celebrity to the risk of his or her rights being violated. For instance, as a result of the digitised world we now live in, such an image runs the risk of being shared across multiple platforms and being utilised for various purposes by the people it is shared with, without permission. This may be categorised as the misuse or unauthorised use of the image. Hence, there is a pressing need to acknowledge celebrity image rights as part of Intellectual Property Rights (IPR) and protect them from such unauthorised use.
In considering and addressing the legal framework for controlling the exploitation of celebrity image rights, this article investigates how image rights are protected under Nigerian laws and defended against infringements. In order to evaluate the sufficiency and effects of image rights protection under Nigerian laws, this article will explicitly take into account legislations that are now in effect, as well as other legislative enactments that indirectly touch the subject.
What are image rights?
Image rights transcend the borders of mere photographs, to include an individual’s public manifestation of personality. An image in this context encompasses a person’s name, signature, image, slogan, silhouette, logo, mannerism, likeness, nickname, voice, and any other item which may be used to identify a person in public. Image rights protect the use, appropriation and/or exploitation of an individual’s image, that is, they include the right to make use of a person’s personality or image while prohibiting its unauthorised use by third parties.
The legal framework for image rights protection in Nigeria
There are several laws in Nigeria that address image rights, and make provisions relating to it. While some of these laws only address image rights in part, others provide more detailed provisions for it. Some of these laws are addressed below:
a. Constitution of the Federal Republic of Nigeria
Section 37 of the 1999 Constitution provides for the right of Nigerians to privacy. The section not only guarantees but also protects the right with respect to Nigerian homes, correspondences, telephone conversations, as well as telegraphic communications. Considering the fact that privacy is the right an individual has, to keep certain parts of themselves away from others, we can then say that an individual’s image can be characterised as private and peculiar to them if they wish to make it so. Hence, it is up to each individual to decide what kind of personal data they release to the public.
The Data Protection Act 2023 confers specific rights on data subjects that give them control over the use of such data.
b. Data Protection Act
As a result of the readily accessible nature of digital information today, dishonest people have found it easy to steal the pictures or likenesses of well-known personalities from the internet and use them for their own personal gains. The Data Protection Act 2023, however, provides a solution to this menace, conferring on individuals who supply their personal data (data subjects), specific rights that give them control over the use of such data. For instance, section 25 of the Act provides guidelines on when data processing can be said to be lawful, of which consent of the data subject is an indispensable requirement. The Act goes further to pad this protection, stating under section 26 that the silence or inactivity of data subjects shall not constitute consent. Laudably, Section 35 of the Act also provides that a data subject can withdraw the consent for the processing of their data, at any time. Section 36 on the other hand gives the data subject the right to object to the processing of such data, an instruction to which the data controller must immediately adhere, except where public interest or legitimate reasons are concerned. Even with this clause, such public interest or reason must be capable of overriding the data subject’s fundamental right.
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c. Copyright Act
The legal term, “copyright”, is used to refer to the ownership rights authors, musicians, and artists have over their creative works. It grants the copyright owner several exclusive rights, prohibiting anyone else from replicating or exploiting the work without the owner’s permission. Section 2(1) of the Copyright Act brings literary, musical, artistic, cinematic, audiovisual, sound recording and broadcast works under the definition of ‘copyright’, hence making them eligible for protection. As a result, the same copyright protection that applies to creative and cinematographic works can also be applied to the personality or image of a person as it appears in a photograph, painting, sculpture, or in film. Section 108 of the Act also defines ‘copy’ as a reproduction in any form, including a digital copy, which extends to digital images. All these definitions ensure the protection of celebrities’ images.
d. Trade Marks Act
According to Section 67 of the Trade Marks Act, as amended by the Business Facilitation (Miscellaneous Provision) Act), “trade mark is defined as a mark used or proposed to be used in relation to goods or services for the purpose of indicating a connection between the goods or services and a person having the right, either as a proprietor or as a registered user, to use the mark, whether with or without any indication of the identity of that person and may include the shape of goods, their packaging and combination of colours.” A registered trade mark establishes the right to identify a good or service and prevent others from imitating it. For instance, Wizkid, a well-known musician in Nigeria, trademarked the name “Star Boy,” while Omotola Jalade-Ekeinde MFR, a well-known Nollywood actress, trademarked her first name in caps “OMOTOLA”. This is in tandem with Section 5 of the Trade Marks Act which provides that the registration of a trade mark gives a person the exclusive right to the use of that trademark in relation to specific goods or services.
e. Cybercrimes (Prohibition and Prevention) Act
The Cybercrimes (Prohibition and Prevention) Act provides in Section 25 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, without authority or right.
Defending celebrities’ image rights against infringements
Defending the image rights of celebrities simply entails the protection of the same, ensuring they do not run the risk of being victims of indiscriminate and unauthorised usage. The legal framework in Nigeria for safeguarding the image rights of celebrities are analysed below.
a. Protection under the Trade Marks Act
Trademark registration has two important implications. First, the trademarking of any component of a celebrity’s persona indicates that the celebrity is permissive of the approved assignment or licensing of their persona (such as their name, image, slogan or logo), for the purposes for which registration has been requested. Second, the celebrity gains the ability to prevent illegal usage of registered facets of their personality. A registered trademark will be violated if used for any venture without the authorisation of its owner.
b. Protection under the Copyright Act
The Copyright Act in sections 9, 10, 11, 12 and 13 give the author the exclusive right to control the commercial use, production and reproduction, broadcast, adaptation and distribution of literary, musical, broadcast, artistic, audiovisual works, and sound recordings. In this instance, a celebrity comes under the ambit of the author of his image and has the right to enjoy these provisions if such work has been fixed in a tangible form. As a direct consequence of the authorship rights of the image, the celebrity also enjoys what is known as moral rights under section 14 of the Act. This right affords the celebrity the right to claim authorship, object to mutilation, distortion or modification of such works, as well as transfer the rights through testamentary instruments or by operation of law. This means that third parties cannot use celebrity images for commercial purposes without obtaining prior permission or licence from the celebrity.
c. Protection under the Tort of Passing Off
When a person’s name, likeness, or performance traits are appropriated by another, the activity of passing off can be said to have occurred, and a need is created to institute a passing off action. The unlawful use of a celebrity’s “goodwill” or “fame” by fraudulently claiming the endorsement of products by the celebrity may also be considered as passing off. When a passing off action is instituted, three vital elements — also known as the classical trinity — must be proved as provided in the case of Reckitt & Colman Ltd V Borden Inc. Firstly, the Plaintiff must first prove that there is goodwill or reputation attached to his goods and services. In this case, the celebrity must prove that his image is renowned for its goodwill or reputation. Secondly, such a celebrity has to prove that there has been a misrepresentation to the public of the same image. Lastly, he must also prove that as a result of the misrepresentation, he has experienced loss in one form or the other.
d. Protection under the Cybercrime Act
The Cybercrime Act provides in section 16 for cybersquatting which entails the intentional use of a name, business name, trademark, domain name, or other word of phrase registered, owned or in use by any body corporate, individual or governmental body in Nigeria without authority or right. The Act goes further to provide a punishment of two years imprisonment or an alternative fine of N5,000,000 or both. Affected parties may therefore legitimately seek redress or compensation for the violation of their intellectual property rights in cases where an image is protected by trademark or copyright laws and violated through the use of digital technology.
e. Protection under Privacy Rights
Privacy rights are fundamental rights, enshrined in the Constitution of the Federal Republic of Nigeria, that give an individual the liberty of freedom from interference, and the protection of intimacy, identity, gender, name, dignity or appearance. In the landmark case of Douglas & Others v. Hello & Others Ltd, the England and Wales Court of Appeal held that a breach of privacy rights occurs when a third party obtains private information without authority and publishes the same to the detriment of the owner of that information.
In context, celebrities are renowned figures who have built up goodwill for themselves that have become an indispensable part of their names and personalities. In the popular Nigerian case of Bi-Courtney Aviation Services Ltd v. Kelani, a fundamental issue for determination was whether the unauthorised usage of a person’s picture, photograph, drawing or film (components of a celebrity’s image) is a breach of his right to privacy. To this, the court held in the affirmative, emphasising that it is an unwarranted infraction of a person’s inviolable right to private life. Therefore, once goodwill exists in the plaintiff’s image, then the courts do not hesitate to protect such images.
Conclusion
Protecting celebrity image rights is an essential aspect of safeguarding the reputation and commercial interests of celebrities in Nigeria. The onus rests vitally on celebrities to take proactive measures to enforce their image rights, including registering their trademarks, copyrights, and other intellectual property rights. Moreover, celebrities should engage the services of legal experts to ensure that their image rights are adequately protected and defended against any infringements. By doing so, celebrities can maintain their reputation, maximise their commercial value, and preserve their legacy for future generations.
Christian Aniukwu is a Partner at Stren & Blan Partners and heads the Firm’s Intellectual Property (IP) Prosecutions and Commercial Services Practice Groups. Kayode Akindele is an Associate in the Corporate and Commercial Dispute Resolution Unit of the firm, while Stanley Umezuruike is an Associate in the Dispute Resolution Department of the firm, with a speciality in Intellectual property, Entertainment and Technology law-related matters.
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