IMAGE RIGHT IN THE SPORTS INDUSTRY: THE AFTERMATH OF THE #AFCON 2021 GAMES (Part 1)
#imageright #AFCON2021 #Sports #Photographs #Commercialization #Athletes #intellectualproperty #sponsorship #endorsement
Dear #IPFriend,
Welcome to this week’s edition of the #IPSERIES newsletter. My name is Rita Anwiri Chindah, a legal advisor on Intellectual Property, Information Technology and Arbitration. I provide weekly updates on trending global issues with an African bias and with forward-looking opportunities. I’m glad to be back with the seventh edition. If you are yet to read the previous editions and you are wondering how you can access them, kindly click here to access them.
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Backstory
Few weeks ago, the story of #SuperEagles player, Kelechi Iheanacho reposting an image of himself taken by Sulaimon Adebayo of Pooja LA Photos went viral because the #sportsathlete had removed the watermark of the #photographer, reposted the picture and pinned it on his Twitter page without acknowledging the photographer. I got tagged by Modo Victor who is also a photographer to the conversation.
Below is the picture of our case study to buttress the issue:
Matters Arising
· Does Kelechi have the right to repost an image of himself?
Of course, Kelechi has the right to repost an image of himself if it was taken by him, for instance, as a selfie or with the use of a tripod and other gadgets used in this era by influencers, content creators and creative entrepreneur. However, where the image was taken by another person as in the instant case, Kelechi does not have the right to repost the image without first seeking and obtaining the consent, permission and or authority of Sulaimon Adebayo.
To help you understand better, we will be discussing this issue in light of the growing paparazzi dispute on copyright infringement with celebrities who repost images of themselves taken by a photographer on social media such as Gigi Hadid, who was sued for copyright infringement for posting an image of herself taken by Xclusive-Lee, Inc on Instagram without licence. Although she contested the suit claiming co-authorship, the suit was eventually dismissed for failure to obtain copyright registration of the work before filing the lawsuit. See XCLUSIVE-LEE, INC., v. JELENA NOURA “GIGI” HADID, 1:19-cv-00520 (E.D.N.Y.).
The photograph of Gigi Hadid taken by Xclusive-Lee, Inc
According to section 10 (1) and (2) of the Copyright Act, Cap C28, Laws of the Federation, 2004, the first ownership of copyright is vested in the author of the work which means that when a photograph is taken, the photographer owns the copyright in that photo. However, section 10 (3) of the Copyright Act provides an exception to the effect that where a photographer takes a photograph in the course of his employment, the employer shall in the absence of any agreement to the contrary be the first owner of the copyright in the photograph in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical or to the reproduction of the work for the purpose of its being so published.
Thus, when issue of authorship arises because a celebrity reposted or republished a photo of themselves taken by a photographer, the followings are taking into consideration:
Was it a work for hire?
Was a contract signed to that effect that authorship will be transferred to the celebrity? See section 10(1), (2) and (3) of the Copyright Act
Does the celebrity require a license to repost an image of themselves?
What are the Legal Implications for Kelechi’s act?
In the case under review, Kelechi is said to have removed the watermark of Sulaiman Adebayo of Pooja LA Photos. His actions can be considered to be intentional, harmless and devoid of any knowledge of how copyright works. However, from an international player perspective ignorance of the law is not a defence. Thus, knowingly removing the watermark (which should serve as a copyright notice) on a picture of him taken by a photographer and publishing it to the public is an infringement of Sulaiman Adebayo exclusive right accorded to him under section 6 (1) (b) (ii) of the Copyright Act.
In view of the trends of paparazzi suing celebrities for reposting images of themselves, the US court in the Gigi Hadid’s case held that in order for a photographer to sue for copyright infringement, the photographer must have registered the work. This position is yet to tested in the Nigerian court, at least to my knowledge, regarding celebrities being sued for reposting images of themselves not commissioned by them and taken by a photographer whose job is solely based on selling images of celebrities to blogs, gossip columns and other publication. If you have come across any of such case, please send me a message.
Relevance of watermarks on photographs and intellectual property:
Due to the fact that we are in the digital era, where the ease of reproduction of works can’t be easily controlled thanks to evolving technology, creatives and copyright owners such as photographers, who are proactive in protecting their photos and images taken to be distributed and shared online have resorted to using watermarks by inscribing their name, logo, etc on it. Hence, with the introduction and use of watermarks, creative and copyright owners can now commercialize and exploit the exclusive right accorded to copyright works which is automatic upon creation of the work. The question now before us is: do watermarked images enjoy copyright protection? The answer is Yes.
Photographs as an Intellectual Property:
First and foremost, if you are a photographer, copyright laws apply to you and your industry. Thus, you get to enjoy legal backing and automatic protection the moment the work is created in a fixed/tangible format.
How photographers can protect their image via Copyright and Trademark:
Photographs and artistic works as listed in section 1 (1) (c) of the Copyright Act, Cap C28, Laws of the Federation, 2004, is eligible for copyright protection. Copyright grants photographers the exclusive right to enjoy economic right to make money and commercialize their works. Section 6 (1) (b) of the Act provides for the exclusive right of a copyright, such as:
i. The right to reproduce the work in any material form
ii. The right to publish the work
iii. The right to include the work in any cinematograph film
iv. The right to make an adaptation of the work and
Other rights include:
i. The moral right to prevent your work from losing its value of what the work was originally created for;
ii. Right to object to and seek relief in connection with any distortion, mutilation or other modification and any other derogatory action in relation to your work that may affect your honour or reputation. See section 12(1) (b) of the Copyright Act.
While trademark protects a photographer’s name, logo or anything he uses to distinguish his artistic work from that of another photographer in the sector, copyright protects the photographer’s works from illegal or unauthorized usage in whatever form.
Who owns the image the muse or the photographer?
Section 10 of the Nigerian Copyright Act answers this question. By virtue of section 10 (1) and (2) of Copyright Act, the photographer is the first owner of the work. However, in the event that the photograph was taken while the photographer is under contract of service with a proprietor, the proprietor is the first owner of the work in the absence of any agreement to the contrary. See section 10 (3) of Copyright Act.
Rights of a photographer:
A photographer can explore some of the exclusive right accorded to him under section 6 of the Copyright Act which grants exclusive rights to reproduce a photo, publish and distribute to the public. See link to my previous posts about this.
Authorship and ownership of an intellectual property
Criteria for originality in Nigeria
According to section 1(2) of the Copyright Act, which provides that:
(2) A literary, musical, or artistic work shall not be eligible for copyright unless-
(a) sufficient effort has been expanded on making the work to give it an original character.
(b) The work has been fixed in any definite medium of expression now known or later to be developed from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.
Can it be said that Sulaiman’s picture of Kelechi Iheanacho meets the criteria or originality under the above cited section? My answer is yes.
Part 2 will be published next week
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To find out more about the issues raised in this case including intellectual property, image rights, copyright, trademark, photographs, tournament media guide, watermarks, resolving intellectual property disputes on social media, intellectual property in the digital age, you can contact me by sending an email to ipseriesinfo@gmail.com