Having written the first
article on this topic I had intended to write another article on a second
related topic which jumped in my mind, but I allowed laziness and
procrastination get the best of me. Now straight to the topic at hand: To who
belongs the intellectual property rights to celebrity photos and shot at events
or in a public place?

Now to the topic for today
which is whether a paparazzi photographer can own the rights to celebrity
pictures taken on his own accord. And what is the position where the
intellectual property rights infringe on the celebrity’s constitutional rights
to privacy.

It is common to see small
barber shops or hair salons in Nigeria with pictures of both local and
international celebrities as promotional tools. The same question comes to mind
when pictures of celebrities are pasted all over the tabloids and magazines as
headliners or fashion posts, or just for small gist or to gain publicity as a
brand. This issue hit very close to home as I have been to an award show (the
Headies) in the past, courtesy of a friend of mine who gave me a free ticket.
This was when I had much less lumps and bumps, and all was well with the world.
I was very shocked to see my photo boldly printed on the pages of a widely read
newspaper/magazine as one of the well-dressed attendees. I couldn’t help but
wonder what effrontery they had to post my picture without so much as a hint
that my picture could be published. This effectively denied me a choice of
whether I would like the picture posted in the magazine. But my proposed rage
was halted by many thoughts of how nice the picture actually was, how someone
may recognise me on the face of a tabloid and my then secrete craving for fame
and glamour. Now with my new self-acclaimed status as a recognised
non-celebrity, the whole saga felt more like a compliment, so instead of
writing this article or stumping out of my comfort zone to bring those
“criminals” to justice, I went ahead to cut out and keep my picture safe in my

Now moving smartly along and
on a more serious note, I have read the provisions of the Copyright Act
repeatedly and seen that issues like this are not expressly provided for under
the Nigerian laws, except for section 37 of the 1999 constitution which
provides for the right to privacy.

The questions that boggle my
mind therefore are:

a.      Whether
the paparazzi owns the intellectual property rights to celebrity photographs
taken by him/her?

b.    What
is the position of the law when intellectual property rights clash with the
rights to privacy.?

c.     How
does a celebrity protect his image from arbitrary publication and/or sale?

Some of the elements that
can remove the automatic ownership of the copyrights from the photographer
include the following:

Some schools of thought are of the view the celebrity may trademark his or her
picture in order to protect his right to privacy and any other intellectual
property rights that may be connected thereto[1]. While this seems like a viable solution, one must
question the extent to which the trademarking of an image will protect the
celebrity Is just one angle specifically trademarked or the celebrities face in
whatever angle it is captured?

 Payment of consideration in exchange
for the Photo:
Now let us bring this back to Nigerian perspective; and by
this, I mean our Nigerian “owambe” events, our glorious weddings, funerals,
birthdays, house warming, child dedication, etc. we all know the love-hate
relationship with those freelance photographers who harass us with their
cameras both big and small, our very own local paparazzi without whom we may
not enjoy our brief moment of fame. The need to analyse such underrated but
highly sensitive relationships is becoming more imminent as the technology era
takes over our society. This is a situation where the line between consent and
decent is more blurred than any other contractual relationship.

It is common knowledge that
the consent for pictures taken is usually given only after the pictures are
developed and offered to the image owner who may choose to accept the picture
with a slight shrug of the shoulder signalling acceptance and admiration for
the photo or just to take the picture from a random photographer before they
use the picture for charms or out rightly decline the picture. The question
therefore is where does the intellectual property rights lie, and at what point
does the said intellectual property rights devolve from the photographer to his
customer when little or no consent or consideration is given in the first

The answer to this brings me
back to Mr Tufaces story where (in summary) his very beautiful wedding picture
was taken by an alleged paparazzi photographer. Upon demand for their pictures,
the photographer in turn offered to give the photos to the celebrity at a fee.
The photographer however upon payment delivered the photographs with his
watermark very boldly inscribed on all the said photos. The photographer in
that instant like in my above analogy was a paparazzi/freelance photographer
taking advantage of the nice owambe event to showcase his talent.

The legal battle that ensued
therefrom was in summary to clarify the fact that once money had been exchanged
for the soft copy of the photographer’s pictures, the said photographer had in
turn sold all intellectual property rights to same. Stating otherwise would
mean that photographer may do with the photo as he pleases, and in fact, the
image owner will have to take permission from the photographer to post them on
any social media platform, or to reprint for whatever purpose you may require.

3. Protest: we all know
that celebrities get photographed daily by random people, and just like my
interpretation of the Lady Gaga’s hit song ‘Paparazzi’, some celebrities take
desperate measures to ensure they get more coverage while the photographers
make good money by selling the pictures to the highest interested bidders, in
fact most celebrities don’t seem to mind or care that much hence the saying
“there is no such thing as bad publicity.

There exists a general tacit
consent by celebrities and public figures as far as photography is concerned.
The combination of tacit consent and the use or sale of celebrity photographs
by the photographers presupposes an ownership of the rights to the celeb
pictures in line with section 10 of the Copyright Act whereby the photographer being
the originator of the photo owns all rights thereto; he can therefore do with
the pictures taken as he wishes. However, an unequivocal protest against the
photographers use of the celebrity’s picture will effectively distort the
rights of the photographer[2]

Let’s take for instance the
matter that arose in the British Royal Family. Princess Kate Middleton whose
story has touched the lives of many is well known as a celebrity and gets
photographed on a daily basis. However, when she was photographed topless by a
photographer while on vacation with her husband, the princess made a clear
protest by suing the photographer and his sponsors for invasion of privacy,
with large amounts claimed in damages. This was a clear and unequivocal protest
to which the courts awarded cost in damages to the royal couple.

It is worthy of note however
that protest in this instance will not shift the ownership of the intellectual
property rights but will bar the photographer from further use of the said
picture and extinguish any rights he may have to make financial gains from the
photo without the consent of the image owner.

In this instance therefore,
the right to privacy as in section of the 1999 constitution of the federal
republic of Nigeria will trump the photographers intellectual property rights

In summary

1.     the
Copyright Act, the photo and the intellectual property rights therein belong to
the photographer, his employers, or his hirers in the first instance as the
commissioner of the photograph.

2.     A
paying customer whether before the fact will be paying for the services of the
photographer as well as all intellectual property rights attached to the
photographs taken except otherwise stated in writing.

3.     The
intellectual property right may be transferred to a paying customer pays a
negotiated amount for the pictures except otherwise agreed.

4.     Where
the photo is taken of a celebrity or public figure by a freelance/ paparazzi
photographer, all rights in the said photo will belong to the photographer
except where the celebrity or public figure makes an unequivocal protest on the
grounds of invasion of rights to privacy. This however does not strip the
photographer of his intellectual property rights on the photographs, it only
prevents the photographer from using the photos publicly.

Now another issue arising
from this is who is a celebrity under the Nigerian context. This is a topic for
another day.

[1] AYOKUNLE ADETULA; Image Rights and IP in Nigeria;http://barcode.stillwaterslaw.com/1.1/2015/12/21/image-rights-and-ip-in-nigeria/

Managing Partner, H.B Balogun & Co
Source: LinkedIn