You say you are a lawyer and different questions are tossed at you. You are supposed to know. You are supposed to give answers to these questions. Recently, someone sent a message saying a friend’s picture had been used by a photographer without her consent. She wanted to know what the position of the Nigeria law is in relation to pictures and who the actual owners of pictures are.
I will be dealing mainly with pictures taken of people and how they may be put to use. Who actually has the copyright to pictures in Nigeria? The Photographer or the muse? What happens where there is more than one person in the picture? Who has copyright to the picture? Everyone in the picture? The photographer? We already discussed what copyright is and the works that are eligible for copyright. This is a practical example of what copyright really involves. This post will give clarity on who exactly is entitled to deal with the picture and in what manner he may use such pictures.
The position of the Nigerian law is that the photographer who takes a picture is entitled to the Copyright on that picture. This is based on the provision of the law that copyright of a work shall vest initially in the author. ‘Author’ in this case of photographic work refers to the person that took the photograph. So, the question as to who owns the copyright to a photograph is initially answered.
The law considers this subject of initial ownership from these perspectives:
- Where a work is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship, the copyright belongs in the first instance to the author, unless otherwise stipulated in writing under contract.
Let’s illustrate this: if A (not being B’s employer under any contract of service) commissions B to take her wedding pictures, B has the copyright to those pictures in the first instance. But where A does not want this to be the case, a written contract may be made between A and B to alter the general rule.
- Where a work which is not commissioned is made in the course of the author’s employment, the copyright belongs in the first instance to the author, unless otherwise stipulated in writing under contract.
This basically means if in the course of your employment, you create a work (for example, you take pictures), copyright in those pictures are still vested in you as the author. However, an agreement to the contrary may be made to vest the copyright in your employer if it is so desired.
Despite this general rule, provisions are also made in the law to accommodate situations where the person who took the photograph may not necessarily own the copyright to the photographs. This is the part where you can rest assured that you may have an opinion on the way your images are being used. These exceptions to the general rule are:
- The general rule is alterable in so far as there is a contract to that effect between the author of the work and his client.
- Where a work is made by an author in the course of his employment by the owner of a newspaper, magazine or similar periodical under a contract of service or apprenticeship and it is made for the purpose of publication in a newspaper, magazine or similar periodical, then the owner of that newspaper, magazine or periodical is the first owner of copyright in the work so far the copyright relates to the publication of the work in the newspaper, magazine or similar periodical. This is in the absence of any agreement to the contrary.
However, in all other respects, the author remains the first owner of the copyright in the work.
- Although the author of a work (photograph) has the copyright to the work, he is restricted from using it in a manner that constitutes defamation in any respect. This addresses instances where a person’s picture is taken without consent. Where it is used for purposes that may result in defamation, a legal action may be instituted against the author.
- Copyright is property which is transferrable. This transfer may be done by giving it out totally or by giving it out for a specific period of time. In such an instance, the recipient of the Copyright becomes the owner.
Ownership of copyright to a photograph usually lies in the photographer at first instance, this is not to say that it cannot be transferred based on an agreement between the photographer and the muse. A great precaution will be to clarify these issues with your photographer before commissioning him to take pictures of you or your loved ones. This is even more important in this season where lots of pictures will be taken to keep memories alive.
- Uwede-Meshack O., Who owns copyright and how does a work become eligible for protection under the Nigerian Copyright Act. www.academia.edu/4673044/Who_Owns_Copyright_under_the_Nnigerian_Copyright_Act
- Nigerian Copyright Act, 1988 (Cap C28 Laws of the Federation 2004).