The rationale that a person that takes a photograph; subject to a contract indicating otherwise, owns the copyright in the resultant image is one that has been long established in Nigerian jurisprudence and legislation. However, the right of a person; being subject of a photograph, to commercialise their personality, and to prevent its unauthorised use by others; also known as image rights, is one that is yet to gain purchase in Nigerian jurisprudence and legislation.
This lack of protection for the rights of subjects of a photograph in Nigeria, and the inherent need for a muse to control the associative uses their image was being put to, created the quagmire which came to a head in the case of BANIRE v. NTA STAR TV where the Appellant; Banire, sued the Respondent NTA Star TV for their unauthorised use of her image.
2.0. BACKGROUND OF CASE
The facts of the case as deducible from the decision is that the Appellant; Banire, brought an action before the Federal High Court that her image was used by the Respondent; NTA Star TV, on billboards in Abeokuta and Akure for promotional and commercial purposes without her consent expressly sought and obtained. This, according to the appellant amounted to the tort of passing off. In its defence, the Respondent submitted that the pictures of the Appellant were supplied to it by Virtual Media Network Limited pursuant to a Channel License Agreement between them.
In resolving all the issues raised, the trial court held that the Respondent’s use of the Appellant’s image was neither a violation of the Plaintiff’s right under the Copyright Act nor did it amount to the tort of passing off and subsequently dismissed the suit.
On appeal to the Court of Appeal, the judgment of the trial Federal High Court was upheld, with the cornerstone issues before the court being whether a category of Intellectual Property rights known as Image rights exists under Nigerian law and jurisprudence, and if so, the position of the law as regards their exploitation.
3.0. RESOLUTION OF THE ISSUE BY THE COURT
The Court held that under Nigerian law, a category of rights known as image rights did not exist, and that where a dispute arose with respect to the ownership and exploitation of rights in a photograph in Nigeria, the law per the provisions of Sections 10 and 51 of the Copyright Act, was clear in the sense that it is the photographer and not the person in the image that owns the copyright to the picture. In the words of Honourable Justice Muhammed Baba Idris (JCA), “What is evident from the above provision is that the person who is a muse or the person in the photograph is not in fact the author and therefore he/she does not own copyright in the photograph. Rather it is the person who took the photograph that is the author.”
The decision of the courts in Banire’s case was mainly an interpretation of the provisions of the Copyright Act. The particular provisions relevant to this issue are Sections 10 and 51 of the Copyright Act as rightly noted by the Courts. Section 10 of the Act provides that:
10.(1) Copyright conferred by sections 2 and 3 of this Act, shall vest initially in the author. (2) Notwithstanding subsection (6) of section 11 of this Act where a work-
(a) is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or
(b) not having been so commissioned, is made in the course of the author’s employment, the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under the contract.
The above provision suggests that the right to claim ownership of a work (a photograph in this instance) rests with the author of such photograph unless contrary is stated in writing under contract or the author works for an employer. The question that naturally follows is “Who then is the author (of a photograph)?”
This query has been answered in Section 51 of the Copyright Act (Interpretation Section) as observed by the court. The section simply provides that:
“Author – in the case of a photographic work, means the person who took the photograph;”
This then implies that since the picture of Banire was taken by Virtual Media Network Ltd, it assumes the status of the copyright owner of the picture as rightly declared by the courts. It therefore flows from the provisions of the Act, and the decision of the court that photographers (who are not employees) generally own the copyright to the pictures they take either commissioned or not unless a contrary arrangement has been agreed in writing.
The failure of the Appellant to join Virtual Media Network Ltd; the owner of the Copyright in the photographs in question, and their inability to fulfil the particular conditions under passing off, meant that the appellant’s case would ultimately fail. These writers submit that the reverse may have been the case if the appellant had sued all necessary parties, and proven the elements required for their claim to succeed.
However, one important aspect which the court failed to address, probably because it was not raised by Parties to the case and as such, was not in issue before it, is the contending right to privacy of the person photographed on one part, and the right to copyright ownership of the author on the other part.
5.0. THE DATA PROTECTION PERSPECTIVE
Although the issue of data protection was not raised at both the trial court and the Court of Appeal, these writers believe that the grouse of the Appellant; since the category of rights known as image rights are not recognised under Nigerian law, could have been brought under the data protection regime. This is because of the subject of the dispute (use of image) is conveniently addressed under Data Protection.
Nigeria currently does not have a comprehensive/principal legislation on the subject of data protection. However, the available subsidiary legislation; the Nigeria Data Protection Regulation, was developed by the National Information Technology Development Agency (NITDA) in 2019.
Under this regulation, personal data is defined in Paragraph 1.3 of Part 1 as :
“Personal Data” means any information relating to an identified or identifiable natural person (‘Data Subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; It can be anything from a name, address, a photo, an email address, bank details, posts on social networking websites, medical information, and other unique identifier such as but not limited to MAC address, IP address, IMEI number, IMSI number, SIM, Personal Identifiable Information (PII) and others.”
By the foregoing definition, it can be deduced that the photograph of a person; taken within the context of their employment for purposes related to their employment only, is a personal data which by implication is protected under the NDPR.
The NDPR goes further in providing that the consent of the data subject (Banire in this case) must be obtained for the specific purpose it was to be used for or for any other purpose outside the scope for which it was originally collected. The implication of this is that the primary data controller in this case i.e. Virtual Media Network should have disclosed to Banire the out scope purpose(s) for which the pictures were taken bearing in mind that the scope for which there were originally taken was in relation to documenting her status as an employee of Virtual Media Network.
Therefore, from the facts of the case, the appellant ought to have joined Virtual Media Network as a defendant, and argued that her consent was not sought before the picture was used for the marketing purpose it was eventually used for. This argument has its foundation in the NDPR particularly Part Two (Sections 2.1(1a), 2.2(a), 2.3 (1) & (2e).
6.0. CONCLUSION & RECOMMENDATIONS
In order to forestall cases of breach of the right to privacy and unauthorised use of image rights from employees, it is advisable for employers to either include a clause in the contract of employment that exclusively permits them to use pictures of the employees for marketing or other lawful purposes as may be needed. In the alternative, a separate contract regarding the use of the image for marketing needs of the employer may be signed by the parties. This is in compliance with global best practices.
 This is guaranteed under Section 37 of the 1999 Constitution
 Guaranteed under the Copyright Act.