The common assumption is that if a person is the subject of a picture, they should be the owner and have copyright ownership over it. However, this is not always the case.

Before we delve in, let’s understand the definition and concept of Copyright.

Copyright, as defined by the Oxford English Dictionary, is the legal ownership of the content and arrangement of a literary, artistic or musical work (including computer software) in any medium, including the right to control its reproduction, normally at least initially that of its originator(s), for whom it is a form of intellectual property. Copyright protects the work of authors, artists, songwriters, music publishers, composers, photographers, and other creatives.

The Black’s Law Dictionary defines copyright as “the right of literary property as recognized and sanctioned by the positive law. A right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.

Copyright has also been defined as the exclusionary right that the owner of an intellectual creation has to make copies of his work, the right to use, produce and exploit . The violation of copyright legislation can lead to loss of income, discourage creativity, retard industrial, economic and cultural growth, and deprive the government of a huge amount of taxes, especially in copyright-related industries . It is therefore necessary to increase awareness on the subject.

1 Duckett, B. (2003) Oxford English Reference Dictionary (2nd edition revised)
2 Black’s Law Dictionary 11th edition (2019)
3Cornish (1999) Intellectual Property: Patents, Copyright, Trade Marks and Allied Right
4Glory (2018) Copyright Law and Photocopying Practice in Nigeria https://digitalcommons.unl.edu/cgi/

The primary copyright law in Nigeria is the Copyright Act 2022 (the Act). The Act was enacted to promote the protection of the exclusive rights of authors of original works and to ensure they reap the full benets over their works, amongst other things. The governing body in charge of copyright in Nigeria is the Nigerian Copyright Commission (NCC).

The Commission is responsible for the following:

a). All matters affecting copyright in Nigeria as provided for in this Act;
b). Monitoring and supervising Nigeria’s position with international conventions and advising the Government thereon.
c). Advising and regulating conditions for the conclusion of bilateral and multilateral agreements between Nigeria and any other country.
d). Enlightening and informing the public on matters relating to copyright.
e). Maintaining an effective data bank on authors and their works.
f). Be responsible for such other matters relating to Copyright in Nigeria as the Minister may,
from time to time, direct.

The Copyright Act is the principal enactment that regulates issues relating to copyright in Nigeria and it covers various creative works such as audiovisual, musical, artistic, literary, and broadcast. It enhances author rights and imposes stricter punishments for criminal violations, especially in digital usage. The Act protects audio-visual works in digital content and declares it unlawful to use any internet content without the creator’s consent.

Section 2(1) of the Copyright Act makes provisions for works that qualify for copyright
protection and they include;

a). Literary works
b). Musical works
c). Artistic works
d). Audiovisual works
e). Sound recordings; and
f). Broadcasts.

However, a literary, musical, or artistic work shall not be eligible to be copyrighted unless the following occurs, according to Section 2 (2) (a-b) of the Copyright Act :

some effort has been expended on making the work, to give it an original character; and
the work has been fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced, or otherwise communicated eitherdirectly or with the aid of any machine or device.

Accordingly, Copyright law prevents the unauthorized exploitation of a work. It’s an exclusionary right that keeps others from using someone’s work or doing any act or causing anyone to do any act which constitutes a violation of the exclusive rights conferred by the Act as provided under Section 36 of the Act .

Who then owns the copyright in a photograph: the person being captured or the photographer who took the picture?

Section 28(1) of the Copyright Act provides that…
”Except as otherwise provided in an agreement, copyright conferred by this Act,
shall initially vest in the author”.

The term “initially” indicates that the author is the original copyright holder of any work they create.

Who then is an author one might ask. The Act defines who an author is based on the different types of works. Thus, an author, in the case of:

a). An audiovisual work means the person by whom the arrangements for the making of the audiovisual work were made unless the parties to the making of the audiovisual work provide otherwise by contract between themselves;
b). Collective work means the person responsible for the selection and arrangement of the collection.
c). A photographic work means the person who took the photograph;
d). A sound recording means the person by whom the arrangements for the making of the sound recording were made; and
e). A broadcast transmitted from within any country means the person by whom the arrangements for the making or the transmission from within that country were undertaken.

The Act unequivocally grants the initial and inherent copyright ownership of a photograph to the person who takes the picture regardless of whether the work was done while employed or requested by a client. It is also important to note that the photograph has to contain watermarks or a copyright notice on its face for the photograph to be protected by copyright law.

Belgore, J in OLADIPO YEMITAN V. THE DAILY TIMES (NIG) LTD & GBENGA ODUSNAYA asserted that:
“copyright fundamentally resides with the author, the individual responsible for the actual efforts, labour, knowledge, and skill invested in creating the work.”

However, displaying copyright information on the photograph puts the public on notice as to who owns the photo and who to contact for licensing or permission.

The statutory provision which vests the ownership of pictures on the photographer received judicial pronouncement in a recent 2021 Court of Appeal case of BANIRE v.
NTA-STAR TV NETWORK LTD.

In that case, the appellant 2012 had a photo session with Virtual Media Network Limited. Also, a Channel License Agreement (CLA) existed between the Virtual Media Network Limited and the Respondent (NTA) in which the former supplied the latter with the Appellant’s images to be used on the billboards. The respondent has now used the picture of the appellant in a billboard advertisement. In bringing a suit, the appellant argued that the use of her images/photographs by the respondent on its billboards along the streets of Akure and Abeokuta without the express authorization of the appellant amounts to a violation or infringement of her image rights.

On the issue of ownership of the copyright, the court held that it was the Virtual Media Network Limited who took the pictures and that it was the owner. The Court held that:
“What is evident from the above provision is that the person who is a muse or the person in the photograph is not in fact the author and therefore he/she does not own copyright
in the photograph. Rather it is the person who took the photograph that is the author. The Appellant by her evidence has stated that she had a photo session with Virtual Media
Network and as such since Virtual Media Network took the photographs, then they have authorship and as a result, they have the copyright of the photograph, not the
Appellant.”

The position of the Nigeria Copyright Act is that the person who takes a photograph is the rightful owner of its copyright and not the subject of the photograph unless there is a
written agreement stating otherwise or the photographer is a paid employee of the subject of the picture.

Once the photographer presses his device and creates a picture, he is said to have expanded effort in creating that image and as such is the owner of the copyright to that picture and has control over the use of that picture. Therefore, any attempt to upload it to the internet, share it with the public, transform it into a painting or reproduce it without the consent and/or permission of the photographer amounts to an infringement of his copyright. Court rulings have confirmed this principle and is currently the law until the Supreme Court decides otherwise.

It is imperative to mention that although copyright protection is automatic upon creation, photographers need to register their copyright with the NCC to gain full legal protection. Registering the copyright provides the photographer with a public record of their claim and the exclusive right to reproduce, distribute, display, and prepare
derivative works based on their photographs. Additionally, it makes it easier to enforce the copyright in case of infringement.

In conclusion, it’s important to understand that the principle of copyright ownership may change if specific contractual agreements transfer the copyright to the client or subject of the photograph. However, even if someone owns the copyright to a photo, they don’t have unlimited use of it. They still need to consider image rights and privacy concerns. With these exceptions aside, the general rule remains that the photographer owns the copyright to a photograph, not the subject of the photograph.