Sometime back, a graphic designer called out a movie director for using her creative works in his award winning movie, after she was told they were not good enough. She was aggrieved because her graphic designs were incorporated in the movie without any payment made to her and without acknowledging her as the creator of the graphic designs. The case highlighted a number of legal issues under intellectual property law especially the right of attribution.
Copyright vests in the creator of an eligible work two broad categories of rights: economic rights and moral rights. Economic rights are those rights designed to confer financial and economic benefit and advantage in the creator of a work in which copyright subsists. Moral rights are not designed to confer any financial advantage on the right holder, however, they are created to safeguard the creative or artistic reputation of author. It is believed that an author’s creative work is a personification of the soul and spirit of the author. Moral rights ‘recognizes that the author has a right over his creation that goes beyond exploitative rights’, that is mere economic rights. It acknowledges that these ‘rights are personal, non-pecuniary, and inseparable from human rights and the identity of the author.
The Nigerian Copyright Act in section 12, recognises two forms of moral rights, which are the right of paternity or attribution (the right to claim authorship) and the right of integrity. The right of attribution recognises and provides for the right of an author to claim authorship of his work. This right is exercisable when any of the economic acts provided for in section 6 of the Copyright Act are carried out. So, each time, a work in which copyright subsists is reproduced, published, performed, translated, distributed for commercial purposes , adapted or made into or incorporated in a cinematograph film, the authorship of the author of the work must be asserted and acknowledged. This right ensures the authorship of a work in which copyright subsists is attributed to the author/creator of the work. It ensures he gets the accolades, commendations and privileges that accrue from creating his work. For example, books always have the names of the authors inscribed on them- this is an example of the exercise of the right of attribution. It also extends to the right to publish a work under a pseudonym or anonymously. The incidental or accidental use of a work, without acknowledging the author’s authorship is inexcusable under the law, except where it is accidentally or incidentally included in the broadcast of current events.
The right of integrity, which is also a form of moral right refers to an author’s right to object to any distortion, mutilation or a modification of his work, or any other derogatory action in relation to his work which is prejudicial to his honour and reputation. This right is aimed at safeguarding an author’s reputation as expressed in his work. Changes made to an author’s work, even when done in good faith could still amount to an infringement of moral right. In order to protect an author’s creative and artistic reputation, the Copyright Act empowers an author to object to any modification or derogatory action prejudicial to his reputation.
Moral rights provided for under the Copyright Act are ‘perpetual, inalienable, and imprescriptible’. Moral right lasts forever, even after the expiration of copyright. They cannot be transferred by way of contract, even when copyright is assigned and they cannot be waived. In the event of the death or unavailability of an author, this right can still be enforced on his behalf by his heirs and successors-in-title.
In the case of the graphics designer, whose work was used in a movie, without acknowledging her as the author of the work, it is clear that her right to claim authorship was infringed. In the Nigerian case of Maurice Ukaoha v Broad-based Mortgage, the plaintiff, an architect gave the defendant a building plan made by him. The defendant published the building model in the newspaper as the proposed building of its head-quarters and identified a different company as the author of the work, the plaintiff sued and the court held that the defendant had infringed the plaintiff’s right to be identified as the author of the building plan. Moral rights secure the opportunity for an author to enjoy his economic rights. For example, when the building plan in the Maurice Ukaoha’s case were published in the newspaper, the moment another person was identified as the author of the building plan, the plaintiff lost every potential client that may have wanted to use his services to the person wrongly identified as the author. It is therefore clear that economic rights derivable from copyright can only be truly realised and enjoyed where an author’s moral rights are respected.
There are certain safeguards that every business (especially business that use creative works – this extends to virtually every business) must put in place to avoid infringing an author’s economic or moral rights. Every business ought to develop an intellectual property (IP) policy. This is necessary to ensure that works protected by copyright are not inadvertently used in advertising and marketing or the design of a product or service of the business, without due authorisation. It also ensures that the authors of works in which copyright subsist are identified and the requisite consent obtained before the work is used. Ignorance of the law, or the accidental use of copyrighted works is inexcusable under the law.
1. ‘Creative Expressions: An Introduction to Copyright and Neigbouring Rights for Small and Medium Sized Enterprises in Nigeria’ (2011) Intellectual Property for Business Series 4, 14.
2. Elizabeth Schere, Where Is the Morality? Moral Rights in International Intellectual Property and Trade Law (2018) 41(3) Fordham International Law Journal 773.
3. Elizabeth Schere, Where Is the Morality? Moral Rights in International Intellectual Property and Trade Law (2018) 41(3) Fordham International Law Journal 773.
4. Copyright Act, section 12(1)(b).
5. Copyright Act, section 12(1)(2).
6. (1997- 2003) 4 IPLR 48.