THE LEGAL PROTECTION OF IMAGE RIGHTS IN NIGERIA: DSTV’s ALLEGED INFRINGEMENT OF WILFRED NDIDI’s RIGHTS
Adetimehin T., Ilobun J. and Ajele O.
INTRODUCTION
With the emergence of the digital age, various issues i.e internet fraud have arisen that prompts the need to be more protective with our private space. Particularly within our Entertainment Industry, personal pictures could be easily & maliciously used by strangers to promote unauthorised content. This constitutes an infringement of our Image Rights.
Although every person has this right to claim for an infringement of their image rights, famous celebrities are prone to being caught within this web. This is seen as they can exploit the value reposed in their personalities by lending their faces or voices to a brand.
What are Image Rights?
In simpler terms, the right to one’s own image is the authority to decide and control where, when, how and by whom our physically recognizable features (image, voice and name) can be captured, reproduced or published for commercial use.
One’s image is deemed to be personal property rights and it bears the following four elements:
- A person’s right to use and display his personality as he deems appropriate
- A person’s right to gain income from all attributes of his character
- A person’s right to transfer his earnings from his character attributes to others
- A person’s right to sue based on using aspects of his character and personality as a property right without permission.
Character Merchandising
Connected to the concept of personality rights is character merchandising. It is a clever marketing method that utilizes a profitable manipulation of a renowned personality, using its well-recognised international appeal to promote the sale and use of a certain product. These brands associate themselves with the popularity of those sportsmen so as to drive sales forward e.g Usain Bolt’s endorsement deal with Puma.
However, deceptive marketing is creating a false impression in the mind of the public that the celebrity whose image was used endorses the product or service being advertised. In Robyn (Rihanna) Fenty v Arcadia Group, Rihanna sued Topshot, a member of the defendant group for selling T-shirts with her image and the court held that it was a misrepresentation to the general public that Rihanna endorsed the sale of the shirt.
So why is deceptive marketing and the exploitation of a celebrity’s image right is such a big deal? These celebrities have developed valuable personalities which can be exploited by being brand ambassadors. Their presence leads to an increase in the brand’s sales and greater revenue for these celebrities hence the need to protect their image right.
This then poses the question: How do we protect our Image Rights from unauthorised exploitation?
PROTECTION OF IMAGE RIGHTS IN NIGERIA
It’s worth noting that no Nigerian authority or legislation specifies image rights or the degree to which they’re protected. Our only alternative is to examine other related laws that can be applied to protect ones image rights.
Image Rights and the Violation of Right to Privacy
The right to privacy as enshrined in the Constitution has always been called in aid when claims of the nature arise. S37 of the Constitution of the FRN provides for the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information. Article 8 of the European Convention on Human Right, which is based on the same principle as Section 37 of the Constitution also provides that everyone has the right to respect for his private life, his home and his correspondence”. Any intrusion of personal life by whatever means or form such as photography, written articles or caricatures may be ground for an action for breach of privacy. In National Media Limited and Anor v Jooste, it was upheld that the use of a person’s image without permission is a violation of a person’s right to make a decision as to who should access their image. Similarly, in Julia Basetsana Kumalo v. Cycle Lab (Pty) Ltd. the court held that a celebrity has the right to privacy and identity; the non-consensual use of their images for advertising purposes will amount to infringement.
Data Protection Laws
Although there are no comprehensive data privacy laws in Nigeria, it is important to look at our image rights from the data protection angle. Any information that can be used to identify a person would be considered personal data and qualifies for the GDPR protection. Article 1.3 of the Nigeria Data Protection Regulation 2019 suggest that it can be a name, address, a photo, an email address, bank details, posts on social networking websites, medical information, signatures, face expressions mannerisms, etc. Articles 2.8 — Articles 3.1 provide that a Data Subject (an individual) can request the erasure of their personal information, may receive a copy of such information, may refuse permission to an organisation, may require correction or disclosure of their inaccurate information in structured format, and may transfer it. In essence, they have the right to object to the unlawful processing of his or her personal data.
Image Rights and Passing Off & Defamation
The essence of passing off is portraying goods to mislead the public into believing that the product, good or service is that of another. Due to the absence of stringent rules on passing off, we would be adopting judicial decisions in UK that extended this right to protect the use of celebrities’ images. In Moorgate Tobacco Co Limited v Philip Morris Limited. The court adopted passing off as the use of confusing and deceptive names of celebrities to portray a sort of affiliation would arise as this is likely to deceive the members of the public. In Mohammed Salah v Egypt Football Federation. The issue arose in the unauthorized use of Mohammed’s image by the Egypt football federation. Although, this matter was not taken to court but Mohammed Salah would have been able to bring an action under passing off.
An action for Defamation can be brought if the claimant believes that such an advertisement would negatively affect his public image and career. In Tolley v J S Fry and Sons Limited, a golfer brought an action against the company on the ground that the advertisement could cause him to lose his membership with an amateur golf club because it portrayed him as a professional golfer. Well, YES!. That action was successful as the court deemed it Defamatory.
Image Rights and Trademarks
S67 of the Trademark act defines a mark as a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof. S 5(2) (a) of the Trade Marks Act creates a reference to image rights where it stated “the use of a mark in physical relation to goods…advertisements issued to the public” Under trademarks, for one to bring up an action for infringement, there has to be the likelihood of confusion in the public in the essence that consumers or people in the society tend to link a sort of affiliation of the celebrity to the work. However, it is important to state that there is a limitation in protecting these rights under trademarks.
Image Rights and Copyright
An action can also be brought under Copyright. Because an Artistic work has been defined by the Copyright Act to be “paintings, drawings, lithographs, woodcuts, engravings, sculptural works, photographs not comprised in a cinematographic film”, it is safe to say that a person’s image rights reproduced in a photograph, painting or the likes, may be eligible for copyright protection. However, S51 of the Copyright act vests the authorship of the photograph on the one who took the photograph unless the client commissioned that photographer.
ENFORCEMENT OF IMAGE RIGHT
In Nigeria, these rights are usually not enforced. As there are insufficient Nigerian cases on this, it is useful to consider if these legal protections above have afforded sufficient remedies in other jurisdictions. In the case of Reklos and Davourlis v Greece, a baby who had been put in the sterile unit was photographed by the hospital for commercial activities without the permission of his parents. It was held that it constituted a breach of privacy. In Nigeria, in the Nigerian Copy right case of Peter Obe v Grapevine Communications Ltd, the court held that the Defendant’s act of publishing the Plaintiff’s photograph without license or authorisation amounts to infringement of the Plaintiff’s copyright in the photograph and in the book entitled “Nigeria Decade of Crises in pictures.”
Does this right to privacy extend to pictures taken in public place?
Yes, even in public, a person can have reasonable expectation of privacy. As established in the Princess Van Hannover’ case, pictures taken in public places were deemed to be violations of privacy.
DAMAGES
It is important to note that the ability of a claimant (especially individuals with the tendency to attract a larger audience) to demonstrate that he enjoys goodwill or considerable influence would be critical factors in any image rights action.
In assessing the damages Ndidi could be entitled to, we would take a cursory look into the impact DSTV’s billboard would have made in attracting many Nigerians to their services. That means to demonstrate its’ considerable influence, there would be a need to estimate its’ reach. This includes the Daily Effective Circulation (DEC) that represents the vehicular or pedestrian traffic surrounding the billboard, Social Media and search measurements like hashtags, URL tracking through coupon and QR codes etc. Also, considering the impact of Football on many Nigerians, there is the tendency that those superstars who are successful in the foreign scene, are held in a lot of prestige amongst many Nigerians. It could be vital for Ndidi’s claim that because of his considerable influence on the Nigerian society, any product or service he endorses would attract lots of attention amongst Nigerians.
CONCLUSION
Image right is a very significant intellectual property right which many people are quite unaware of. Due to the lack of Nigerian regulations and judicial precedents, many Image Rights cases tend to fail. This has resulted in many instances of image rights infringements and undue exploitation. However, it remains important to note that if a person’s rights are infringed upon and he decides to appropriately file a claim before the court, he must demonstrate that he enjoys goodwill or considerable influence on the infringed act.
REFERENCES
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Christian Aniukwu, ‘Brief Overview of the Legal Framework for Image Rights in Nigeria’ <https://thenigerianlawyer.com/brief-overview-of-the-legal-framework-for-image-rights-in-Nigeria-by-Christian-anikwu/ accessed on the 3rd of May, 2021
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