When photograph is
mentioned, images of selfies with twisted lips and the unending posing we see
on social media flips through the mind. Photography and the intricacies therein
falls within the ambit of Intellectual Property (IP). In this regard, IP laws govern, inter-alia, issues of Ownership of Copyright on one hand, and on the other hand,
Right to Privacy and Right Publicity (which flows from the commercial use of
the said photograph)
With the evolution
of smart phones and other devices, virtually everyone who owns such device is a
'photographer'. The World Intellectual Property Organization (WIPO) and other
member State laws recognizes IP rights
in Photography. Section 51 Copyright Act, LFN 2004, though did not define a
photographer, provides that " 'author' in the case of photographic work,
means the person who took the photograph". That is to say, copyright in a
photograph lies on the person who took the photograph and as such, credits must
be given to the photographer at all times. Credits here is not just mere
recognition, I am talking of financial credits.
It will not be new
to keen observers to see at the top or end of published pictures on TV or in
the papers, the name of the photographer or licensing company. For instance, @
Ben hopper or @AFP/Getty Image.
To bring it home,exempli gratia, the Olajumoke Orisaguna's (Nigerian bread-seller-turned-model) picture which
broke the Internet is credited to Ty-Bello (a Nigerian Photographer). It might
appear abstract why the copyright should be vested on the person who took the
picture and not on the person in the picture. But that is as perfect as it
ought to be. Let's take for instance the Jumoke's limelight story, if TY Bello
had kept those pictures in her drawer, would the world, aside her bread
customers, had known Jumoke? Would Jumoke had been the face of Payporte? Or
would she had been Brand Ambassador of Shirley's Confectionery? The answer is
obvious.
I am not in any way
denying Jumoke her Right to Privacy (which obviously is not in issue) or her
Right to Publicity (which relates to the commercial use of her face captured in
the picture - of which she is enjoying). I am also not articulating that contractual
agreement with a photographer cannot shift the vesting of the copyright.
LIABILITIES THAT MAY
ARISE FROM UNAUTHORIZED USE:
During the 2010
Haiti earthquake, a Photographer (Morel, who was in Haiti) took 8 pictures of
the quake and uploaded same to his Twitter account. The pictures were
subsequently shared by a twitter user to AFP who in partnership with Getty
Images sold and licensed copies of the pictures to its customers including
commercial TV channels without giving credits to Morel. Morel brought an action
against AFP/Getty Images for infringement of his copyright. At the end of the
day, Morel got judgment in his favour and went home with a whopping sum of $1.2
million as damages.
[See: Morel V. AFP
and Getty Images (2014) USDC, SDNY]
Note that, aside
general or statutory damages, specific damages must be proved.
It is the law that
where there is a Right, there is a corresponding Duty. The same law that vest
Copyright on one person, vests Right to Privacy and Right to Publicity on the
other person. The fine line must be drawn to avoid infringement.
So the next time you
take a photograph (be it in a park, on the road, in a studio, any premises,
wherever) be mindful of copyright.
Every one ought to
enjoy from his or her Intellectual Property and it is time Nigerians woke up.
Intellectual Property is the employment that awaits the citizenry.
Written
by:
Barr.
Harvey A. Anyalewechi
(an
ardent IP researcher)
Lordharveys@gmail.com
All
rights reserved.
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