The term “Copyright” is often misunderstood, especially when it comes to photography. The first and most obvious question would therefore be, What is Copyright?
The World Intellectual Property Organization describes copyright as “… an exclusive right granted by law to the author of a work to disclose it as his own creation, to reproduce it and distribute or disseminate it to the public in any manner or by any means, and also to authorize others to use the work in specified ways… “
The right in copyright confers on the copyright owner the power to stop others or to prevent others from doing that which is reserved for the copyright owner. Copyright prevent the exploitation of a work by unauthorized persons. It is a negative right, or more appropriately, an exclusionary right, to exclude others from the unauthorized use of someone’s work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. Violation of a copyright is called infringement.
Who then owns the copyright in a photograph; the person whose image is being captured, or the photographer who captured the image?
Section 10(1) of the Copyright Act provides that,… ” Copyright conferred by sections 2 and 3 of this Act, shall vest initially in the author,… (b)… the copyright shall belong in the first instance to the author,….”
Who then is an AUTHOR in a photographic work?
Section 51(1) (f) of the Copyright Act(interpretation) provides that, ” In this Act, unless the context otherwise requires- … ‘ author’ in the case of a photographic work, means the person who took the photograph. “
In Oladipo Yemitan v. The Daily Times (Nig) Ltd & Anor. (1980) F.H.C.R 186 at 190, Belgore, J said that “it must be stated that the legal position is that copyright belongs to the author, who is the one that actually expended the work, labour, knowledge and skill…”
The recent decision of the Court of Appeal in BANIRE v. NTA-STAR TV NETWORK LTD (2021) LPELR-52824 is instructive for this photo generation. The decision confirmed that the copyright owner of a photograph is the photo grapher and not the person in the photograph
From the provisions of the Copyright Act, and the judicial baptism in the two above mentioned cases, it is apparent that a photographer owns the copyright in photography, and not the person who is the subject of the photograph. The moment a photographer presses the shutter button on his camera and creates an image, he owns the copyright to that image. This does not only sets ownership, but also gives the photographer the rights to copy, display, create derivative works (example, transforming a photo into a new original painting) and transfer any of these rights to others.
The moment a photographer clicks the camera shutter; expending sufficient amount of labour, judgment and skill to create a photograph of you, he owns the copyright to that photo, not you. The photographer has the right to control the use of that photograph, including the exclusive right to copy the photo or show it in public.
Although, many people assume they can post an image in which they are the subject, copyright law means the photographer usually owns the rights. So, when you upload that photo to the Internet, or any social media handle; a copy of that photo is made and the image is disseminated publicly, which, if done without permission of the photographer, is an infringement of his copyright.
In 2017, Khloe Kardashian was sued for copyright infringement after posting a paparazzi photograph of herself visiting a Miami restaurant on her Instagram feed. They said, the image which had been exclusively licensed to the Daily Mail, was used by Khloe without their permission and their accreditation had been erased.
Also, Dua Lipa has been sued after allegedly putting a paparazzi photo of herself on Instagram. According to US court documents, the star was snapped queuing at an airport in February 2019, and later shared the shot with her fans “without permission or authorization “. Lipa posted the photo to her Instagram account on 7th February 2019, about four days after it was taken. The photography company sued her, seeking $150,000 (£108,000) damages. The company also asked for an order preventing the singer from further acts of infringement, as well as legal costs.
I have witnessed numerous situations where people in Nigeria violate Copyright innocently, it may just be a thought that they are only clicking photographs and uploading it on social media for likes and comments. Still, this innocent clicking of photographs results in infringing the photographer’s copyright.
The position will be different if as provided in section 10(1), (a), (b) of the Copyright Act, the photographer was commissioned by you ( though not his employer) under a contract of service or apprenticeship; or that the photographs were made in the course of the photographer’s employment; or otherwise stipulated in writing under the contract.
Therefore, anything outside the provision of section 10(1), (a) & (b) of the Copyright Act, you can be held liable for copyright infringement; by reproducing, displaying in public, or uploading your pictures on social media without the permission or authorization of the photographer. This is regardless of the fact, whether or not the photos were taken without your consent.
In conclusion, the fact that if someone takes a photo of you, (exceptions aside), they are the first owner of the copyright in that photo, and they have the right to use that photo, not you. However, that does not mean that they can use your image for ‘commercial purposes’ without your permission too. If your image is used to promote goods or services without your permission, there are potential remedies under the Fair Trading Act. And in certain circumstances, using a photograph of someone without their permission may also be a breach of the Privacy Act or potentially be an interference with your privacy that is actionable under the tort of breach of privacy.
ABOUT THE AUTHOR
CHRISPODIAH EMMANUEL is a penultimate Law student of the Faculty of Law, Taraba State University (TSU), Jalingo. He is an enthusiast of Intellectual Property Law, International Humanitarian Law amongst others.
Chrispodiah is currently serving as the Director of Moot & Mock trials/debates; Chairman of the Moot & Mock Trials/Debates committee; Member, Legal Practitioners’ and Disciplinary Committee of the Law Student Association of Nigeria, Taraba University Chapter. He is the Secretary General of Rotaract Club of Taraba University; a Campus base international humanitarian club. He is also an administrator at Legal researchers and drafters; a forum created to aid law students in their research and writing skills.
Chrispodiah has a penchant for research and writing, currently (2021), he has over 20 articles authored and published to his name in some prominent websites.
In 2020, he was a nominee in the ‘ writer of the year’ category in the Taraba State Entertainment Industry Awards (TSEIA).