Privacy Law
By Theophilus Onyekachi Eke
Associate, Olaniwun Ajayi LP
Introduction
While privacy violations related to data protection and image rights have been in the spotlight in recent years, there is another important but often overlooked privacy violation that needs to be considered: the violation of life story rights. These refer to the legal permissions required to create a film or TV show based on the life of a living or deceased individual.
Picture this: You are watching a gripping movie or TV show that is based on the life of a real person. You are hooked by the fascinating storyline, the character development, and the powerful emotions on display. Do you ever stop to wonder whether the filmmakers actually had the legal right to tell this story?
Think about some of the most popular films and TV shows that are based on true events or real people. From "76" to " Black November", "The Queen's Gambit" to "Oloibiri ", the list goes on. To many viewers, it is as simple as being engaged by intriguing histories, but behind the scenes, there is often a lot of legal wrangling that goes into obtaining the necessary permission to create these stories.
Take, for example, the recent controversy[1] surrounding the Nigerian film "Dark October", which was released on Netflix in February 2023. The movie depicts the brutal "Aluu four killing" incident that occurred in Nigeria in October 2012, where four young men were beaten and burnt to death by a mob in the Aluu community of Rivers State. The parents of the boys expressed their strong disapproval of the movie and asked Netflix and Linda Ikeji, the movie’s Executive Producer, to suspend the release of the movie on the basis that they did not give their approval for the story to be told.
This raises an important question: do filmmakers need permission to portray a person’s life in a movie? While some might argue that it is only right and courteous to seek approval from the people involved, the reality is that the legal landscape is not clear cut.
What are life story rights?
Life story rights refer to the legal permissions that are required to make a film or TV show based on the life of a living or deceased individual. Life story rights typically involve obtaining the rights to tell the story of someone's life on screen, including the right to use the individual's name, image, and likeness, as well as any other aspects of their life story that are protected by intellectual property rights.
It is often wrongly used conterminously with depiction release in film agreements. While both are two separate legal concepts that are related to the use of an individual's likeness in film or TV production, they serve different purposes and cover different aspects of the production process.
Life story rights agreements give permission to use a person's personal details and characteristics, including the right to fictionalize events and depict other parties that have played a part in the person's life. These agreements may also include obligations for the subject to participate in marketing and publicity for the film and to act as a consultant to the screenwriter. Depiction release forms, on the other hand, only give permission to interview a person on-camera and use their voice, name, and likeness. These forms are typically used when the person being depicted is not the main focus of the film or is deceased.
In Nigeria, there are no legislative enactments that require the permission of an individual or his estate to portray his life story. The implication of this is that the use of a life story in a film production without obtaining the permission of the owner of such life story or his estate, will not attract any liability, be it criminal or civil. Notwithstanding the foregoing, there may be legal implications arising from the relevant laws governing tort, constitutional right to privacy, and intellectual property rights.
In the ensuing paragraphs, we shall consider how these laws impact life story rights.
Law on Defamation and Life story rights
The laws governing defamation intersect with life story rights when a film or TV show portrays real-life individuals or events in a potentially defamatory manner. If a film or TV show portrays a real-life individual in a way that they deem false or damaging to their reputation, they may have legal grounds to pursue a defamation claim. In such cases, the filmmaker’s defence is to demonstrate that the portrayal was based on factual information and did not constitute defamation.[2]
It is pertinent to note, however, that if individuals provide consent for the publication of a defamatory statement about themselves, they may forfeit their right to sue for defamation at a later stage based on the principle of "volenti non fit injuria." This principle holds that if someone voluntarily and knowingly assumes the risks associated with a situation or activity, they cannot later complain about any harm or injury they suffered as a result. The Court of Appeal in Ogoja L.G. v. Offoboche[3] held that, “…for the defence of volenti nonfit injuria to apply as a defence to libel suit, it must be proved that the plaintiff expressly or impliedly assented or acquiesced in the publication of the defamatory matter for an action to lie.”
As a precautionary measure against potential litigation, it is recommended to seek permission from the person whose life is being portrayed before any publication. This approach ensures that the subject has given informed consent and reduces the risk of legal complications.
Right to Privacy and Life story rights
In Nigeria, the right to privacy is protected by Section 37 of the Constitution of the Federal Republic of Nigeria 1999, which guarantees the right to privacy of citizens, their homes, correspondence, and other private affairs. This protection includes the right to control the use of personal data and information, including image and likeness.
To ensure the protection of personal data, the Nigerian Data Protection Regulation 2019 (NDPR) was issued by the National Information Technology Development Agency (NITDA) and provides guidelines for the collection, processing, storage, use, and transfer of information relating to an identifiable person. By the combined effects of sections 2.2(a) and 2.5(c) the NDPR, organizations that collect and process personal data must obtain the consent of the data subject, provide them with certain information about the processing and specify in its privacy policy the purpose of processing personal data.
While the right to privacy and life story rights are distinct legal concepts, they are related to the extent that both protect the individual's control of the use of their personal data and information, including their image and likeness. As such, it will be necessary for filmmakers and production companies to obtain permissions and clearances to avoid infringing on an individual's right to privacy and incurring liability in this regard. These individuals may not want their personal lives and experiences to be shared publicly without their permission and obtaining same demonstrates respect for their privacy and dignity and prevents the possibility of a breach and subsequent liability.[4]
Intellectual Property Laws and Life story rights
Intellectual property (IP) rights are legal rights that protect the creation of the human intellect, such as inventions, literary and artistic works, symbols, names, and designs. In the context of life story rights, there are two major IP laws that intersect with these rights: the Copyright Act and the Trademarks Act.
In Nigeria, the Copyrights Act protects the intellectual property or work of another so long as it is in perceptible form[5]. This means that any work that has been fixed in any medium of expression, such as in documentary format, is subject to protection under the Copyright Act, regardless of whether or not the owner or author has applied for copyright protection[6].
It is important to note that a person's story, such as their life story, is only eligible for copyright protection if it is documented in a perceptible form, such as an autobiography or a biography. Therefore, any producer seeking to adapt a movie based on such a story must obtain permission from the copyright holder to use the content of the autobiography.
The law on Trademark simply seeks to protect the distinctive mark connected with goods and services of a proprietor.[7] Since a person’s life is neither good nor a service, it does not enjoy protection under the Trade Marks Act. However, if the image of the person becomes a brand and has been trademarked[8] in relation to a good or service, the consent of the owner of the trademark, who may or may not be the image owner[9], ought to be sought before being depicted in a film.
Is Consent Required When the Person is Deceased?
The rights to privacy and to institute an action in defamation are considered personal rights as they pertain to the individual person rather than a group or entity. This means that only the person whose rights have been infringed upon can take legal action to enforce these rights. For instance, one could spread lies about the dead without legal consequence, because such a person’s estate (family and relatives) cannot bring an action against a defamer.
The Court of Appeal in C.R.B.R.D.A. v. Sulc[10] sums up the rationale in the following words:
“Under the common law, no executor or administrator or personal representative could sue or be sued for any Tort committed against or by the deceased in his lifetime. In other words, a personal action dies with the party to the cause of action. This was based on the maxim, actio personalis moritur cum persona, (a personal action dies with the party to the cause of action). Thus, an action for a Tort must be begun in the joint lifetime of the wrongdoer and the person injured. If, even after it had been so begun, either of the parties died before a verdict had been obtained, the action abated, and could not be continued or recommenced by or against the representatives of the deceased.”[11]
It is important to note that while the rights in intellectual property are also personal, they can be enforced by others. During the lifetime of a person, the copyright in an autobiography or a trademark can be transferred through assignment, license, or testamentary disposition, and the assignee/licensee/beneficiary of the transferred rights can enforce them. In such instance, a filmmaker is required to seek consent from the beneficiary before using the content.
Limitation to Life story rights in Nigeria
As it is with other principles sourced from developed countries, that of life story rights in Nigeria is faced with limitations. Primordial of these limitations is the lack of legal framework. As earlier mentioned, there is currently no specific legal framework in Nigeria that governs the process of obtaining life story rights. This can make it difficult for filmmakers to negotiate and enforce life story rights agreements.
Another challenge with obtaining life story rights in Nigeria is the issue of cultural and religious sensitivities. Nigeria is a country with diverse cultural and religious beliefs, and this might pose a challenge to obtaining life story rights from individuals who may object to the portrayal of their story in a film due to these cultural or religious sensitivities.
Conclusion
In precis, while there is technically no legal obligation to obtain Life Story Rights, there exist other considerations which producers may want to avert their minds to, before embarking on a project detailing another person’s life; most prominent of these is the risk of defamation, breach of right to privacy, and intellectual property rights infringement, particularly copyright and trademark. As the entertainment industry continues to grow, it is important to preserve the artistic freedom of filmmakers, and equally important to safeguard the dignity and rights of the subjects whose stories are being portrayed on screen.
Without clear guidelines on obtaining and using life story rights, there is a risk of exploitation and misrepresentation, and this is especially important in a country like Nigeria where many people have been marginalized and exploited for profit. Therefore, it is imperative that the Nigerian legislature takes proactive steps to address this issue and establish legal frameworks that ensure the fair and respectful treatment of real-life individuals in the film industry. By doing so, Nigeria can enhance its creative industry and compare favourably with other developed nations.
[2] Registered Trustees of AMORC v. Awoniyi (1991) 3 NWLR (PT. 178) 245 AT 257.
[3] (1996) 7 NWLR (Pt. 458) 48
[4] Section 2.10 NDPR provides that in addition to fines, non-compliance with the NDPR can result in significant penalties, including imprisonment and damages.
[5] Section 2(1) Copyright Act 2022
[6] Section 4 Copyright Act 2022.
[7] Section 4 Trade Marks Act Nigeria
[8] It is important to note that a brand may be trademarked whether or not it is popular. Implicit in this statement is that a mark does not need popularity to be registered as a trademark. However, an unregistered mark requires popularity to have rights under the tort of passing off.
[9] An instance where this may occur is where a company uses the image of an employee as their brand and Trademarks it under the company name. In such circumstance, it is the company and not the employee whose image was used, that has the Trademark.
[10] (2001) 6 NWLR (Pt. 708) 194
[11] This was similarly held in I.T.T (Nig) Ltd v. Okpon (1989) 2 NWLR (Pt. 103) 337.
Originally published by Theophilus Onyekachi Eke on LinkedIn
Reach Theophilus Onyekachi Eke on LinkedIn.
The views expressed in this article are mine and do not represent the views of OALP. The content is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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