In the case of Banire v. NTA-Star TV Network Limited[1], the Court of Appeal, Per Honourable Baba Idris, JCA defined image rights or publicity rights as a person’s right against misappropriation of his name, likeness, physical appearances, nicknames, pictures, personal slogans etc. Simply put, it is the right of a person to control the public’s commercial exploitation of a person’s identity.[2]
As can be seen from the definition, image right is not limited to one’s image whether in physical or photographic form. It also extends to one’s name, nicknames, personal slogans etc. image rights and just like other rights it can be violated when exploited commercially without authorization.
By way of illustration, violation of image rights can be said to have occurred where a beverage company uses the name and image of Fredrick (a well-known influencer across the country with millions of fans) on a billboard advert to promote its energy drink, without Fredrick’s permission, consent or the existence of an endorsement deal between them. The public sees the advert and assumes that Fredrick endorsed the product or is connected to the beverage company in a manner that obligates him to boost the company’s sales and reputation. Meanwhile, Fredrick does not earn anything from it and may not even support the consumption of energy drinks or that particular energy drink. On the converse, the beverage company may or would have generated more revenue as a result of the boost in patronage occasioned by the advert. In order to seek remedy for the misappropriation and exploitation of his image, Fredrick may file an action to seek damages for the violation of his image right generally and for commercial gains.
Position of Nigerian Law as it relates to image rights
Before explaining the position of Nigerian law in relation to image rights, the court first examined the possible cause of action under which an action for the enforcement of image rights can be brought generally by looking at the English jurisprudence. The court considered the cases of Irvine v Talksport Ltd (2002) F.S.R 60 and Robyn Rihanna Fenty v Aracadia Group Brands Ltd (T/A TOPSHOP) & Another (2012) EWHC 2310 (CH), where the plaintiffs, brought actions against the defendants under the tort of passing off for unauthorized use of their images. According to the Court, these cases establish the fact that actions for infringement of image rights can be brought under the tort of passing off.
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