To view the subscribed-email version of IP ABC, click here.
Question of the Week (3)
I’m Alade Thomas, a Nollywood comedian. Last weekend, I discovered a bank in Nigeria used my photo in one of its Instagram posts. The photo is a shot from a recent movie. To brand itself as a fun bank to do business with, the bank inserted the following words in the photo: “Unlike other banks, every day is Friday in every FlexiBank banking hall, making you smile and laugh all the way to success.” The bank’s action is surprising. This is because neither the bank nor any of its agents contacted me before using my photo. Now my face is all over social media. “How much did the bank pay you, Honey?”, asked my wife. “Congrats, you owe me a drink!”, a couple of friends have been saying over the phone. Plus thousands of reposts, retweets, shares, and direct messages. I am unhappy about this. I badly needed a quiet time with my family this new year. Can I sue FlexiBank for using my image without permission?
Answer
Since FlexiBank did not seek permission before using a photo of you to push its brand on Instagram, you want to know if you have right to sue the bank.
The answer is YES.
In the scenario above, there are various rights that apply to various persons, including you.
FlexiBank has violated your right to privacy and family life.
First, you have a right to privacy. Your right to privacy and family life is guaranteed under section 37 of the Constitution of the Federal Republic of Nigeria. By FlexiBank’s act of using a photo of you without first seeking and obtaining your permission, FlexiBank has violated your fundamental right. You are therefore entitled to sue FlexiBank for violating your right to privacy and family life.
Apart from your right to privacy, how about your right to publicity—specifically your image rights?
Now, apart from your constitutional right to privacy, you may be wondering if you have any image rights against FlexiBank. Right of publicity is your right as an individual to control how your image, name, or other aspects of your identity is commercially exploited by any person. Image rights is therefore part of your right of publicity. Image right is your right to control the commercial use of your image as a personality in the public. In some other countries, image right is treated as a property capable of being protected by law through registration.
But Nigeria does not have any law that protects right of publicity or image rights. So whether you can claim damages against FlexiBank for commercially exploiting your image is largely a question only a court of law can determine. Commercial rights in images is effectively limited in Nigeria. You may consider speaking with your lawyers.
And because the photo of you is protected by copyright, FlexiBank may still be liable for copyright infringements.
Notice we keep saying, a photo of you, not your photo. This is because we want to be sure you understand that for copyright purposes there is a distinction between the two. The image of you FlexiBank has used on Instagram is a photo of you, not necessarily your photo. This is because the face in the photo belongs to you, but the photo itself may belong to the photographer or camera person who took the shot. Since FlexiBank used a screenshot of you from a movie, it is most likely that the photographer or camera person who worked with the film producer has copyright in the photo. This person is entitled to sue FlexiBank for copyright infringement in a separate legal action.
By the way, since FlexiBank originally posted the infringing photo on Instagram, you may contact Instagram to remove it. Clauses 4 and 8 of Instagram’s Terms of Use allow users to demand that infringing posts be removed.
For competent guidance, consider consulting an IP lawyer or law firm for professional advice and assistance.
Best wishes
IP ABC™
Follow-up questions, if any, are welcomed.
IP ABC™
IP ABC™ is an initiative of Infusion Lawyers, a virtual intellectual property (IP) and information technology (IT) law firm for the knowledge economy and the digital age.
Disclaimer
Characters, events, names, or places referred to in IP ABC may be fiction. Such fictional contents are meant to aid comprehension. Answers provided on IP ABC are prepared by Infusion Lawyers and are for general purposes only. Answers should not be construed as legal advice or legal opinion under any circumstances. If you have questions or legal problems that you need legal assistance with, please contact your IP lawyer or law firm, or contact Infusion Lawyers if you have none. And whenever any links shared through IP ABC lead to other sites, neither IP ABC site nor Infusion Lawyers’ website incorporate any materials published in such linked sites. We also do not necessarily approve, endorse, or otherwise sponsor such links. ALL external links may have been used for reference purposes only.