An opinion/concept note by The Oyemaja Institute of Law
There are a thousand and one; no, scratch that; millions and millions of business owners in Nigeria. With each one trying to gain some sort of advantage over other similar brands, it is not uncommon for brands to get creative with advertisements by jumping on popular trends, using trending slogans or even signing endorsement deals with celebrities and influencers just to get the word out.
Due to the name that they have built over time, celebrities get to enjoy a level of goodwill in connection with their person. This means that their image can be used to boost the sales and profile of a particular brand by lending their face or voice to that brand. They therefore get to have a bundle of intangible rights known as "Image Rights".
Well, technically everyone has image rights. It is however more likely that a person is successful in enforcing his image rights if he enjoys some level of goodwill in connection to his person. The term "image rights" is therefore more likely to be used in connection to a celebrity trying to control how his or her image is used for commercial purposes.
When we think of images and image rights, we are likely to think in terms of photographs but then it actually goes way beyond that. Image rights may include a person's physical likeness (which could be photographed, painted, sculptured or made visible in any way possible) as well as other rights such as the right to a person's name, their photograph or likeness, signature, personal brand, verbal expressions or slogans, their mannerism and so on.
In Nigeria, there is no comprehensive law protecting image rights (although some individual states have laws relating to image rights) . There are however a number of existing laws that can be applied to image rights. These laws include copyright, trademark, the right to privacy and in some instances the tort of passing off.
Image rights: Copyright
According to Section 1(1) of the Copyright Act, artistic works (which may be inferred to include a person's personality produced in tangible form) as well as cinematographic films get to enjoy copyright protection as soon as they are in a fixed medium without having to be registered first.
Under copyright law, the owner of a copyright has the exclusive right to reproduce, publish, perform, produce, distribute, broadcast, and make adaptations of the work. Therefore, a person's image should not be used to promote a brand without their express permission.
The ownership of any artistic work is primarily vested in its author. If the image is a photograph for instance, the rights will be vested in the photographer but then once there is an agreement to the contrary the right can be vested in the other party to the agreement.
However, it gets a little tricky if the image is an exaggerated and sometimes humorous imitation of the original work. In such cases, it just might fall under the fair use for purposes of Parody or Pastiche rule of exception to copyright infringement. This exception applies exclusively to literary musical, artistic work and cinematographic films but not to sound recording and broadcasts.
Parody refers to a transformative use of a well – known work to satirize, ridicule, criticize or comment on the original work and not merely using the original work to draw attention to another work. The second category, pastiche, is a work of an art, a piece of writing or a work generally that deliberately copies the style of somebody or something else.
Similarly, a caricature refers to a funny drawing or picture of a person that exaggerates some parts of them or describes them in a way that makes them seem really ridiculous.
The reasoning behind these exceptions is to allow for the lighthearted use of an existing work as long as it is not presented to the public as a new work but rather as one deriving from another work that the audience may be familiar with. It is my opinion that Sabinus' case against UAC foods just might fall under this exception and thus may be deemed as fair use.
Image Rights: Trademark
It is also not uncommon for celebrities to seek to protect unique catch phrases that are associated with them from exploitation by the general public by seeking to trademark these phrases. For instance, a few years back, Cardi B made an unsuccessful attempt to trademark " okurrr". Phrases like "let's get ready to rumble '' and words like "BANANAS (in the context of craziness) " and Sabinus' "something hooge" have in fact been successfully trademarked in times past.
In Nigeria, trademarks are protected under the Trademark Act. To qualify for trademark protection, a trademark must be adequately registered at the Nigerian Trademark office, once this is done, any unauthorized use will be regarded as an infringement.
This is why brands should not be quick to jump on popular trends in order to promote their brands without first stopping to consider if these phrases have in fact been trademarked in the class that their business falls into e.g entertainment, cosmetics and cleaning products among others. This is because a trademark is usually registered in classes and can only be freely used if it has not been registered in a particular class.
Images and right to privacy
The Constitution of the Federal Republic of Nigeria 1999 (as amended) in Section 37 provides for the right to privacy. Now the constitution does not clearly define privacy but the word generally connotes freedom, public attention or public intrusion and so it is safe to say that this right should reasonably extend to the exploitation of a person's name or image for commercial benefits.
This implies that when a person's image is used in an authorized way, he or she can sue for a breach of the right to privacy as guaranteed in the Constitution.
In other jurisdictions such as the United Kingdom, actions challenging the unauthorized use of a person's image for commercial purposes have been brought under the tort of passing off as it creates a false impression that such brand has been endorsed by the person whose image is used. As a result, because such a person has considerable goodwill connected to his image, members of the public may be persuaded to patronize a particular brand under the impression that it is connected with that person.
Nigeria is no doubt blessed with countless creatives. It is however sad that many of these creatives do not go the extra mile to ensure that their Intellectual Property and image rights are adequately protected. Also, many brands are quick to jump on trends without stopping to consider the legal implications of their actions.
When properly used, endorsements can create a mutually beneficial relationship between the celebrity and the brand. For instance, brands like Globacom Nigeria, Pepsi and airtel have been known to have various brand ambassadors spanning across the entertainment industry ranging from actors to singers and even comedians.
Yours in opinion,
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