Copyright in Photography
A Nigerian photographer has taken to social media to decry what he termed theft of his intellectual property. In his tweet, he stated that a Nigerian musician, Burna Boy copied and used a photograph which he authored (a person who takes a picture is deemed to be the author of the photograph and has copyright in it).
The photographer alleged that Burna Boy used a picture he took in 2019, for the cover photo of his music album. Of course, where copyright infringement is alleged, it is the duty of the court to determine if there has been an infringement, however, some of the responses on social media call for clarification of what copyright protection and infringement of copyright in photographic works entail. It is therefore not the objective of this article to state whether or not there has been an infringement, but clarify the position of the Nigerian copyright law, especially as it relates to copyright in photographs.
The first thing to note is that copyright protection exists for artistic work and a photograph is protected under the Copyright Act as an artistic work. This means that copyright in photographs can be infringed. Copyright in a photograph is infringed if the work is reproduced, published, included in a cinematograph film or adapted.
Following the photographer’s claim of copyright infringement, social media users have raised the issue of originality in the photograph he claims authorship of. In their argument, they stated that the pose struck by the subject of the photograph is not original and so in their estimation, the photograph lacks originality.
On Twitter, a few people shared some images from the internet to substantiate the claim that the pose captured in the photograph is not new. Others also demanded that the photographer proves that the idea expressed in his photograph is original and was not stolen from some other person. These issues will be addressed.
The requirement of originality required for the protection of a photograph, does not extend to the subject of the photograph (that is the person, object or scenery captured by the photographer in the photograph, or the pose struck by the subject of the picture, in the photograph). Originality refers to the process of, or the making of the work.
That is why section 1(2)(a) of the Copyright Act requires that sufficient effort must have been expended in making the work, so as to give it an original character. The moment a photographer clicks the shutter of his camera, he is deemed to have satisfied the condition of originality. So for example, if a photographer takes a picture of the sea, the sea which is the subject of the picture is not protected by copyright. Anybody can take pictures of the sea or produce a painting of the sea but the sea as captured by the photographer in his own photograph is what is protected by copyright.
In Nigeria, there is no indication that the Copyright Act protects a pose, (a posture assumed for a photograph), at best, what it protects is an artistic rendition of the pose. What would amount to an infringement is the unauthorised reproduction of a copyright work that captures the pose.
The law does not preclude others from striking a particular pose and creating an original photograph out of the pose. In the United States copyright infringement case of Shepard Fairey and Associated Press (AP), Shepard Fairey, an artist did a stencil portrait (the Hope poster) of former United States President, Barack Obama, which was used during his presidential campaign.
It was subsequently discovered that the portrait was done using a photograph of Obama taken by an Associated Press’ photographer. AP requested compensation for the infringement of its copyright, and Shepard Fairey sued, seeking a declaration that its use of AP’s photograph did not amount to an infringement. One interesting issue that arose out of the case was fairey’s assertion that AP’s photographer had captured Obama in the classic ‘three-quarters- pose’, but that the pose was not protected by copyright because it is popular in American political portraiture.
The court was unable to determine the case because the parties reached an out of court settlement. In another American case, Rogers v Keen, a sculptor replicated a photograph of a couple with eight puppies by doing a sculpture of the exact image in the photograph. There was evidence that the sculptor had relied on the photograph in creating his own work. The court held that copyright in the photograph was infringed.
It is also important to note that work will still be protected by copyright, even if the author of the work infringed copyright in some other work in making his own work. It is, therefore, no justification for another person to infringe copyright in another person’s work, just because that person infringed copyright in another work.
Authors of creative works such as photographs are beginning to take more stringent steps towards the protection of their copyright because of its potential economic value and more. Recently, a photographer sued the car company, Volvo for copyright infringement. The photographer stated in his claim filed in court that he organised a photoshoot, in which he featured a Volvo S60 car and a model.
He shared some of the pictures on Instagram and Volvo sought his permission to use the pictures to which he replied that he does not grant a license for the use of his work for free. Some months later, he discovered that his pictures had been used by Volvo in an advertisement, so he sued Volvo for copyright infringement.
It is the law that he who asserts must prove, so whoever that claims that his copyright has been infringed must prove it.
2. ‘Case Study on Fair Use and Fair Dealing: The Hope Poster Litigation’, An excerpt from William Fisher et al, “Reflections on the Hope Poster Case”, 25 Harvard Journal of Law and Technology244 (2012).
3. 960 F.2d 301, 308. (2d Cir. 1992).
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