WHAT TO DO WHERE A BRAND USES YOUR PHOTO FOR COMMERCIAL PURPOSES WITHOUT YOUR PERMISSION

A few days ago, popular Yoruba actor, Odunlade Adekola called out food vendors who used his image  to promote their businesses to refrain from doing the same.

As funny as it sounds, this is one out of several challenges most celebrities face. Owing to the value attached to their brand personality, it is possible for celebrities to exploit the financial value of their brand personality. However, it becomes a challenge when some brands or businesses exploit images of such celebrities for their financial gains without obtaining permission.

This article will focus on image rights, particularly with respect to deriving profit from an individual’s personality and what rights are available to individuals who are victims of such exploiation.

WHAT ARE IMAGE RIGHTS?

It is important to first establish the fact that image rights within this context are not restricted to photographs alone but include sculptures, paintings, or other visible media of expression.

In simple terms, image rights (known as the right of publicity in the US) refer to a person’s right to commercialize aspects of his/her personality such as physical appearance, pictures or caricatures, signature, personal logos, and slogans, as well as the right to prevent other people from commercially making use of them.

WHAT LAWS GOVERN IMAGE RIGHTS IN NIGERIA?

There is currently no statute governing image rights in Nigeria. However, there are a variety of laws that could be applied to protect image rights in Nigeria such as;

  1. The right to privacy as provided by the Constitution of the Federal Republic of Nigeria

Section 37 of the Constitution of the Federal Republic of Nigeria, restricts and entitles an individual to decide what type of information he/she wishes to disclose to the public as well as restrains a third party from disclosing one’s personal information without consent.

2. The laws governing Intellectual Property in Nigeria

With respect to Intellectual property protection, an image right might be protected as either copyright or trademark.

The Copyright Act describes “artistic works” to include, irrespective of artistic quality, paintings, drawings, etchings, lithographs, woodcuts, engravings, and prints; works of sculpture; photographs not comprised in a cinematographic film; and works of artistic craftsmanship.From this definition it is, therefore, safe to say that images enjoy copyright protection so long as they are in a fixed medium of expression and need not be registered to be qualified for such protection in the first place.

Where an individual’s name is registered as a trademark, such a name enjoys the protection and third parties are restrained from exploiting such names for commercial gains. 

WHAT REMEDIES ARE AVAILABLE IN CASES WHERE A PERSON’S IMAGE IS USED FOR COMMERCIAL GAIN WITHOUT PERMISSION?

An affected party can institute a tort action against such a brand for “passing off” for commercial gain without consent.

And although Nigerian courts are yet to set a precedent with respect to image rights, we could always make reference to foreign court decisions in this respect.

However, before resorting to the courts, an individual who seeks redress for such exploitation should consider the following steps;

1. In cases where such an image was used on social media or other online platforms, make a complaint to the platform urging them to take down such image(s).

2. Lodge a formal complaint with the advertising agency where relevant.

3. Reach out to the infringing party.

4. Where 1, 2, and 3 above fail, contact your lawyer to take legal action on your behalf.

We hope you gained value from this blog? For further inquiries, you may CONTACT US and we will be delighted to assist you.

Cynthia Tishion
Cynthia is a lawyer and currently serves as Head of Corporate / Commercial Services at LEX – PRAXIS. With her passion for business and entrepreneurship, she is actively engaged in creating awareness on the legal aspect of businesses through various platforms such as writing, public speaking engagements.

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