1.             
INTRODUCTION

Celebrities often have two streams of income, one for the
work they are known for (like acting, singing, dancing, stand-up comedies etc.)
and the other, from endorsement deals and sponsorships. This second and, often,
more important stream of income derives from the “image” and personality that
these celebrities have built over time. For example, David Beckham’s estimated
earnings as at 2009 from endorsements and advertisements alone is stated to
have exceeded his earnings from playing football.[1] These unique characteristics
such as the appearance, voice, use of certain catchphrases etc., make up a
celebrity’s image, and this image most times compel their fans and followers to
patronize products and services to which they are associated. These intangible
proprietary rights are very essential to celebrities, as research has proven
that it contributes to the bulk of celebrity income.[2]

2.           
WHAT IS IMAGE RIGHT

Image rights (also known as
the right of publicity in the United States) refer to a person’s right to commercialize
aspects of his/her personality such as physical appearance, pictures or
caricatures, signature, voice, personal logos and slogans, and the right to
prevent other people from commercially making use of them without authorization.[3] It
is simply the right of a person to control the public commercial exploitation
of his or her identity.

Image rights are equivalent to property rights. The very
notion that property rights can vest in an individual’s personality imply
conversely that attributes of that personality cannot be appropriated without
prior permission, as with other kinds of property rights.[4] It
is important to note that “it is celebrities who have mostly instituted and won
image rights cases”.[5]
This is not to suggest that persons who are not celebrities have no image
rights; however, one will find that the ability of a claimant to adequately demonstrate
the enjoyment of goodwill or considerable influence might be factors to be
considered in any image rights action.[6]

To show Infringement of
image rights, a plaintiff must prove: (1) Validity – that the plaintiff owns an
enforceable right in the identity or persona of a human being; and (2)
infringement – (a) that the defendant, without permission, has used some aspect
of the plaintiff’s identity or persona in such a way that the plaintiff is
identifiable from the defendant’s use; and (b) that defendant’s use is likely
to cause damage to the commercial value of that persona.[7]

3.           
IMAGE
RIGHTS IN NIGERIA AND OTHER JURISDICTIONS

Even though there is no statutory provision for image rights
in the United Kingdom, there are some decided cases on the subject matter that
can be of persuasive effect in Nigeria. The case of Robyn Rihana Fenty & Ors. v. Arcadia Group Brands Limited (T/A
TOPSHOP) & Anor.,[8] gives us a clear view into the present position of English law in
respect of image rights. In this passing off action, the Defendant, a well-known
fashion retailer, started selling a t-shirt with the Claimant’s image in March
2012. The image in dispute was a photograph taken by an independent
photographer. The Defendant, Topshop, had a licence from the photographer who
took the Claimant’s pictures; but it did not have a licence from the
Claimant. The Claimant contended that the sale of this t-shirt without her
permission infringed her rights.[9] At
the conclusion of the trial, the Court found for the Claimant when it held in
the following words:

“The mere sale by a trader of a t-shirt bearing an image of a
famous person is not, without more, an act of passing off. However, the sale of
this image of this person on this garment by this shop in these circumstances
is a different matter. I find that Topshop’s sale of this Rihanna t-shirt
without her approval was an act of passing off.”[10]

This judgment
was upheld on appeal. It is worthy of note that Judge Briss in his Judgment
above, had earlier clarified that this case was one of passing off and not an
infringement of Image Right stricto sensu because according to him:

“…there
is today in England no such thing as a free standing general right by a famous
person (or anyone else) to control the reproduction of their image”.

In the United States of
America, various states have developed a wide legal framework to prevent the
exploitation of the economic benefits attached to the use of a person’s image.[11] In
the US, these rights are  known as the Right
of Publicity. Under the Indiana Statute, for instance, persons entitled to
this right of publicity are called “Personalities” (otherwise known as
Celebrities).[12] There are also several
robust judicial authorities on the subject matter.

In John W. Carson v. Here’s Johnny Portable Toilets Inc.,[13]
the court stated that, “the right of
publicity is that a celebrity has a protected pecuniary interest in the
commercial exploitation of his identity. If the celebrity’s identity is
commercially exploited, there has been an invasion of his rights.”

There is no specific law on image
rights in Nigeria. The closest law would be the “Right of Privacy” provided for
in section 37 of the 1999 constitution, as amended. There is also no known
judicial authority on image rights in Nigeria.  Due to this dearth of judicial
and statutory provision on Image Rights in Nigeria, one can arguably say that there
may not be compensation under Nigerian law (unless reference is had to English
case law) if an action is instituted for the unauthorized violation of a
person’s image rights. On the contrary, where a person’s image is registered as
a device/logo at the Nigerian Trade Marks Registry, an unauthorised use of that
trademark would amount to an infringement under the Nigerian Trade Marks Act.[14]

      COPYRIGHT
OF A PHOTOGRAPHER v. THE IMAGE RIGHT OF A CELEBRITY

By virtue of Section 39 of the Nigerian Copyright Act,[15]
the copyright in a photograph belongs to the person that took the picture, i.e.
the photographer.[16]
The photographer is the owner of the pictures and as such, he possesses
exclusive control over that picture.

Based on the foregoing
provision, where a photographer takes a photograph of anything or person
including a celebrity, he has copyright over that photograph and can make use
of it as he likes. However, since the image right of a celebrity is also
recognized in most jurisdictions, there exists concurrent rights over the
picture of the celebrity, which can give rise to a conflict of rights, and in
such case, one would have to decide which of these rights take priority: the
photographer’s copyright or the celebrity’s Image Right?

In Shaw Family Archives, Ltd. v. CMG Worldwide, Inc.,[17] the estate of Marilyn Monroe
brought an action against the
Shaw Family Archives (“SFA”), which is owned by the children of the
late photographer
Sam Shaw, who took (and owned the copyright in) several of the most famous
images of Marilyn Monroe. Monroe’s estate alleged that SFA violated Monroe’s
publicity rights under Indiana’s Right of Publicity Act because it sold
T-shirts at a Target store in Indianapolis bearing Monroe’s photograph and
operated a website through which customers could purchase licenses for the use
of Monroe’s image on various commercial products.^[18] 
The United States District Court for the Southern District of New York found
that in 1962, the year Monroe died; New York did not recognize a transferable
post mortem right of publicity. The court found that since the right of
publicity did not exist, Monroe did not possess the right when she died;
therefore, her Will conveyed no rights to her heirs. This finding defeated any
claim of ownership and thrust Monroe’s persona into the public domain, where
anyone is free to use it.^[19]

Flowing from the above decision,
it would appear that where the image right or post mortem image right of a
celebrity is statutorily recognized and protected, such right in the event of a
conflict or action for infringement, will take priority over that of the
Photographer who took the images. Conversely, lack of any legislative enactment
on Image Rights presupposes the absence of a cause of action or right on the
part of the celebrity.

This writer holds the view
that the image right of a person is still enforceable despite the absence of an
existing legislation on image rights.[20] The
Nigerian constitution[21]
for example, provides for the right of privacy of an individual. It reads as
follows:

“The
privacy of citizens, their homes, correspondence, telephone conversations and
telegraphic communications is hereby guaranteed and protected.”

Flowing from the above
provision, any intrusion of personal life by whatever means or form such as
photography, written articles or caricatures may be ground for an action for
breach of the right to privacy. Therefore, an unauthorised photograph of a
person can constitute an invasion of a person’s privacy and the celebrity in
this case can protect his image from being used without his or her consent.

Likewise, where there is a
contract of employment between the photographer and the celebrity, the rights
to those images will be owned by the employer (the celebrity) and he or she
therefore possesses exclusive control over the image and can bring an action
for breach of contract where the photographer uses the pictures without
authorization.

In summary, a celebrity can
protect and enforce his or her image rights even though there are no express
statutory provisions on the subject matter. In the United Kingdom where there
is no law on Image rights, different legal approaches have been adopted by
celebrities to address this issue. Some of these alternative approaches include
passing off, Trademarks, Privacy and Data Protection, Defamation, Advertising
and Contract.

5.           
IMAGE
RIGHTS OF DELEBS (DECEASED CELEBRITIES)

Usually, when
an iconic celebrity passes
away, their memory lives on with their fans and in many cases, we see a
celebrity’s fan base increase post mortem.[22]
Companies have caught on to this and are capitalizing on it by using images of
deceased celebrities in their branding tactics and other initiatives. This
speaks to the consumer preference for nostalgia, and perhaps of deceased
celebrities who represent a lifestyle or dream.[23]

Post mortem right of publicity exist beyond the death of
a celebrity and are protected by and in many states in the United States. The
various states where the law applies deal with
the right of publicity differently. For example, while California
provides for post mortem rights of publicity for 70 years, Florida, Illinois,
Indiana gives 40, 50 and 100 years respectively, while New York does not
recognize post mortem Image rights.

From the decision of the
court in the famous Elvis Presley’s case,[24] it
is clear that the Image right of a person can be bequeathed as part of their
legacy, thereby enabling heirs to continue appropriating these rights even
after their death.

Forbes now runs an entire website
devoted to “top-earning dead celebrities.” More than a few notable celebrities
are monetarily worth more dead than alive.[25] Coming
in at No. 1 on the Forbes top-earning dead celebrities list is the “King of
Pop,” Michael Jackson. The list put the total 2009 earnings of Michael
Jackson at $275 million, Elvis Presley $60 million, Steve McQueen $6 million,
Marilyn Monroe $8 million and Albert Einstein’s earnings, at $10 million.^[26]

6.           
CONCLUSION

The images of celebrities
often generate a fortune in licensing fees for advertising, endorsement, and
promotion of business entities. These images are valuable as their association
to products or services attracts valuable gains to the product owners. Consequently,
since a bulk of the income of celebrities is often derived from their image
rights, celebrities are very keen on protecting this right from infringement.

Moreover, like in trademark
infringement, where the image of a celebrity is associated with a brand without
authorisation, it might cause confusion in the mind of the consumers who might
erroneously believe that the celebrity is endorsing such brand. This misuse may
also interfere with the celebrity’s contractual relations where he or she is
perceived to have endorsed a competing brand after signing an endorsement deal
with a particular brand. The importance of the protection of this right cannot
therefore be overemphasized and like other intellectual property rights, image rights
should be legally acknowledged and protected in Nigeria.

However, pending the
enactment of an image rights law in Nigeria, celebrities can adopt the
alternative means discussed in this paper to protect their identities from misappropriation.
It is also my expectation that when the opportunity arises, the Nigerian courts
will take the initiative from India and not only recognize but also enforce
this right notwithstanding lack of a specific law on the subject matter.

For further information on this article and
area of law, please contact

Oluwafunmilayo
Mayowa at: S. P. A. Ajibade & Co., Lagos 

  234.1.2703009;
14605091; 14605092

[email protected]

www.spaajibade.com