Image rights are starting to garner attention due to multiple cases of exploitation and infringement. Notably, the shield of image rights covers in most cases celebrities in Nigeria. It is interesting to note that it is mostly celebrities who have instituted and won image rights cases.
This is not to suggest that persons who are not celebrities have no image rights; however, the ability of a claimant to demonstrate he enjoys goodwill or considerable influence, are factors in image rights action. Therefore, in most cases, it is the celebrities that can establish these factors when they seek to enforce their image rights.
Because these celebrities are famous, people can exploit the value reposed in their personalities by lending their faces or voices to a brand. The brands increase their sales and profile due to the endorsements by these celebrities while the celebrities earn royalties in return.
Most of the time, celebrities can earn more revenue than they make from their regular careers. For example, in Nigeria, a local singer, Iyanya was reported in 2016 to have had a $350,000 endorsement deal with Zinox computers.
The vastness of this audience exposes such a celebrity to the risk of his or her rights being violated. Such an image, for instance, stands the risk of being shared across many platforms and is used for diverse reasons by the individuals it is shared with, without authorization, as a result of the digital world we now live in. This could be regarded as inappropriate or a misuse of the image.
Therefore, it is imperative to recognize celebrity image rights as a subset of intellectual property rights (IPR) and to safeguard them from this kind of unlawful usage.
What are image rights?
An image includes a physical likeness or representation of a person, animal, or thing, photographed, painted, sculptured, or otherwise made visible. It transcends the borders of mere photographs, to include an individual’s public manifestation of personality. It may include a person’s name, signature, image, slogan, logo, mannerism, likeness, nickname, voice, and any other item which may be used to identify a person in public.
On the other hand, image rights refer to the control over an image by the personality whose image is portrayed or by the image’s creator.
Legal framework and protections for image rights protection in Nigeria
In Nigeria, image rights are protected under Nigerian laws and defended against infringements. There are legal frameworks safeguarding the exploitation of celebrity image rights as well as other legislative enactments that indirectly touch the subject. The legal framework in Nigeria for safeguarding the image rights of celebrities is analysed below:
a. Constitution of the Federal Republic of Nigeria
Privacy is the right an individual has, to keep certain parts of themselves away from others. Section 37 of the 1999 Constitution provides for the right of Nigerians to privacy. The section not only guarantees but also protects the right concerning Nigerian homes, condenses, telephone conversations, as well as telegraphic communications. An individual’s image can be characterized 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.
In the 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.
b. Data Protection Act
Due to today’s easy access to digital information, dishonest individuals have discovered it to be simple to take the images or likenesses of well-known individuals off the internet and use them for their gain. However, the Data Protection Act of 2023 offers a remedy for this problem by giving persons who provide their data (data subjects) particular rights that give them control over how their data is used.
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 further provides 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.
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 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), “trademark is defined as a mark used or proposed to be used about goods or services to indicate 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 trademark establishes the right to identify a good or service and prevent others from imitating it. For instance, Wiz kid, a well-known musician in Nigeria, trademarked the name “Star Boy”. This is in tandem with Section 5 of the Trade Marks Act which provides that the registration of a trademark gives a person the exclusive right to use that for specific purposes.
e. 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 authorization of its owner.
f. Protection under the Copyright Act
The Copyright Act in sections 9, 10, 11, 12, and 13 gives 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 license from the celebrity.
g. 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.
Read also: How celebrity image rights are protected under Nigerian law
h. 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 another word or phrase registered, owned, or in use by anybody 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.
Conclusion
To protect the reputation and financial interests of celebrities in Nigeria, celebrity image rights must be protected. Celebrities must play a significant role in enforcing their image rights by taking proactive measures, such as registering their trademarks, copyrights, and other intellectual property rights.
Additionally, celebrities should use legal professionals to make sure that their image rights are properly safeguarded and defended against any violations. Celebrities can do this to uphold their reputation, increase their commercial value, and leave a lasting impression on future generations.
Olomu is a law student at Lagos State University.
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