Photography- the art of taking, processing and making photographs (pictures) has evolved over the years from a mechanical process to a highly skilled artistic undertaking. Digitisation and technological advancements have contributed to the flexible and extensive use of photographs both for commercial and non-commercial activities. Social media platforms such as Instagram Facebook and even WhatsApp thrive on the sharing of digital images (photographs).  The fashion industry, celebrities and all kinds of entertainers and social media influencers are dependent on photography for diverse reasons ranging from commercial to personal. Photography is beginning to play a greater role in commercial activities such as advertising, and it is recognised as an essential tool for achieving commercial success. Businesses use photographs on their websites, photographs are sometimes included in calendars, books, dairies, clothing items, company reports for aesthetic appeal as well as for commercial purposes. The pervasive use of images which may be subject to copyright protection may result in the unintentional infringement of copyright.

Celebrities as well as corporate organisations have been called out or sued for copyright infringement in photographs. In 2018, a Nigerian actress was called out by a photographer for removing the watermark (which identifies the photographer as the author of the work) from pictures of her taken by him, which she shared publicly. The photographer accused the actress of stealing his rights and the actress on her part insisted that since she paid for the pictures, she could do what she pleased with it. In 2019, an American actress was sued for copyright infringementafter she shared a picture of herself, taken by a famous New York photographer, on Instagram without the permission of the photographer.  Also, a photographer is suing Microsoft for using several photographs taken by her in one of their publications. These cases clearly show that copyright holders are taking more steps to protect their intellectual property in their works; and photographers are not left out.

Photographs and Copyright Protection

Photographs are protected by copyright as a form of artistic work under the Nigerian Copyright Act. All forms of pictures and images are protected by copyright, whether they are pictures of random people, nature, animals, inanimate objects etc. Once a picture is taken, whether or not it is printed and whether or not it is edited, it becomes protected by copyright. Copyright is vested in an eligible work and the copyright in a protected work is owned by the author/creator of the work. Photographs are protected by copyright because the law recognises and rewards the creativity and effort expended in the taking and making of the photograph (it is inconsequential that the effort may be considered to be minimal).

The general rule governing copyright in photographs is that copyright in photographic works/photographs is owned by the photographers and not the subject of the photography.  Copyright is vested in the person who took the photograph/picture (there is an exception /slight modification to this rule, which will be discussed in a subsequent article).Under section 51 of the Copyright Act,the person who took the picture is considered to be the author of the photograph/picture. It is inconsequential that the picture was taken with a phone, or a camera. It is also immaterial that the picture was taken at the behest of the person whose picture was taken or that the person who took the picture was paid for the picture. It is irrelevant that the person who took the picture is not a professional photographer.

Ownership of a photograph is entirely different from ownership of copyright in a photograph. Ownership of a photograph extends to only a copy of the photocopy and not the legal right to reproduce, publish, or distribute it to the public for commercial purposes. So, for example, the Nigerian actress whose picture was taken by a photographer owns only the copy of the picture (whether softcopy or hardcopy) given to her by the photographer, because she paid for it. However, the copyright (which is the legal right in the photograph) is owned by the photographer and not her. Thus, even though she is the person in the picture, she cannot do whatever she pleases with the picture. Her right to use the picture is subject to certain limitations under the law; for example, she cannot sell the picture to a magazine for publication, she cannot offer it to any advertising agency or company for any commercial purpose, neither can she remove the watermark placed on the picture by the photographer.

The Nigerian Copyright Act was enacted before the advent of social media, so the law did not expressly make any provisions on the use of photographs on social media platforms, however its reasonable use would not constitute an infringement of copyright. The law provides for fair dealing (reasonable and fair use), in the use of any work protected by copyright.  A photograph may be used for private purposes such as its inclusion in family albums, adorning the home or offices etc. However, when its use is public, the second schedule to the Copyright Act requires that the authorship of the photographer should be acknowledged. This means that where a photograph is used publicly, such as on social media platforms like Instagram, Facebook, WhatsApp etc, the name of the photographer or his trademark should also be stated. For example, when posting a picture on Facebook, taken by Studio 65 a person ought to write ‘picture credit, Studio 65’. This ensures that the authorship of the photographer is acknowledged in accordance with the provisions of the law.

The unauthorised inclusion of a photograph or image which is protected by copyright in a book, on a blogpost, Facebook post, Instagram post, souvenirs, calendars, yearbooks, magazines etc could amount to an infringement of copyright. It is therefore imperative that the consent of copyright owners be sought and obtained before businesses and individuals lift and use images and photographs, especially when its use is public.Where a photograph may be used without the prior consent of the photographer, on the basis of fair dealing, it is important to acknowledge the authorship of the photographer.