AN ANALYSIS OF COPYRIGHT AND PRIVACY ISSUES ARISING FROM CLIENTS’ COMMISSIONED PHOTOGRAPHY.
Who owns the copyright in clients’ commissioned photography?
This question has led to a few debates and created controversies around ownership of copyright in photographs taken of clients by photographers. For some, the copyright in a photograph taken of a client is limited and vested completely in the photographer, for others this right is shared between the client and the photographer. In this article, we intend to share our perspective on the dynamics of copyright in client commissioned photography and how they affect clients’ privacy rights
Photographs for many are undeniably valuable, as memories from various activities could be captured into still images that could last an entire lifetime. These intimate moments of personal and family life are intricately linked to having a sense of personal control and privacy over these memories. It is therefore no surprise that involved parties usually desire to have some control over their photographs and how they may be published or used.
Recent debates on photography rights have centered around the inability of clients to act independently of their photographers in the exploitation of the rights in their personal photographs. We aim to draw a balance between these rights and examine whose right (if legally established) outweighs the other.
Photography rights for a photographer’s benefit are to a large extent protected under the Copyright laws in Nigeria. It is worthy of note that the Copyright Act vests the initial ownership of copyright in artistic works in the author of the work in most situations (exceptions are where a contract states otherwise or where an author creates the artistic work in the course of his employment with a proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, where the major purpose of creating the work was for publication in the newspaper, magazine or similar periodical). The implication of this is, where a photographer is contracted to take photos for publication in media channels, under employment, they do not hold copyright in those works. Questions arise however in situations where photographers are commissioned to take photographs of their clients and parties must consider who holds the copyright in those photographs.
The Copyright Act vests the initial ownership of Copyright in photographs in the author (i.e. the person who took the photographs), where the work is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; Section 9 (2) (a) Copyright Act.
To this extent, the copyright law in force in Nigeria recognizes the photographer as the initial holder of copyright in photographs taken under a contract of service. i.e. where a photographer is commissioned to take a client’s photographs.
The Copyright Act under Section 10(1) however provides that copyright, where they exist may be transmissible by three different options which include: assignment, testamentary disposition or by operation of law, as movable property.
A copyright holder may choose to transmit some or all of their copyright to a third party and the Copyright Act has spelt out the modalities of transmission of these rights, some of which may be express or implied and may vest different classes of licenses to carry out actions that relate to the photographs, within the confines of the established copyright.
An assignment of copyright and the grant of exclusive license to be effective for instance must be in writing. A non-exclusive license to act within an author’s copyright on the other hand is not required to be granted expressly in writing, as the Act provides that the grant of a non-exclusive license may be written or oral or may be inferred by conduct.
Transfer of Copyright:
The initial vesting of copyright in an author (in this case, a photographer who takes photos) may be transferred orally or by conduct to a client who has orally engaged the services of such photographer for monetary consideration, outside a written contract. The mutual understanding, mostly expressed by an oral contract of service between these parties is that the client is empowered to enjoy copyright in their photographs, outside the photographer. However, an oral transmission only grants a non-exclusive license to the client to act within the photographer’s copyright.
From the Copyright Act, general Copyright in an artistic work (e.g. a photograph) is the right to do or authorize the doing of any of the following acts:
¨ Reproduce the work in any material form.
¨ Publish the work.
¨ Include the work in any cinematograph film.
¨ Make adaptations of the work.
¨ Do in relation to an adaptation of the work any of the acts specified in relation to the work in subparagraphs (i) to (iii) of this paragraph.
In another regard, an important right that clients hold with respect to their photographs is their individual right to protect their privacy and personal data. Personal data under the Nigerian Data Protection Regulation (NDPR), includes any information relating to an identifiable natural person i.e. a ‘Data Subject’, who in this case is the photographer’s client. An identifiable natural person is one who can be identified directly or indirectly in particular reference to an identifier, which may be one of several things, including a photograph.
Photographers may be caught under the definition of ‘Data Administrators’ under the NDPR where they choose to use photographs taken of clients for purposes other than which the client commissioned them to. In this regard, photographers would be required to comply with the provision of the regulations with respect to data protection and privacy. Under the NDPR, a Data Administrator “means a person or an organization that processes data”. The scope of the regulation amongst other things applies to all transactions intended for the processing of Personal Data, notwithstanding the means by which the data processing is being conducted or intended to be conducted in respect of natural persons.
The NDPR defines “Processing” as any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Where a photographer performs any of these actions with regards to a client’s photographs, they are involved in the processing of their client’s data.
Among the general principles of data processing, personal data of data subjects must be collected and processed in accordance with specific, legitimate, and lawful purpose consented to by the data subject.
The guidelines also require anyone who is entrusted with the personal data of a data subject, or anyone who is in possession of the personal subject to have a duty of care to the said data subject. A breach of this duty of care may cause a client to bring an action against the photographer for negligence, where a client suffers harm, or embarrassment from a photographer’s breach of their privacy rights. What is also important to note with regards to the Regulation is the first objective of NDPR, i.e. to safeguard the rights of natural persons to data privacy.
Photographers would always be expected to advance this objective and refrain from taking any action against the client’s privacy rights.
Clients’ privacy rights are to a large extent at stake in every activity a client’s photograph may be used for. For this reason, a photographer cannot single handedly decide to exploit clients’ photographs for their personal benefit, where such clients have not approved the use of their photographs.
A client enjoys privacy rights and a photographer is enjoined to respect their clients’ privacy and perform acts that only safeguard clients’ privacy rights. Section 37 of the Constitution of the Federal Republic of Nigeria 1999, (as Amended) which primarily protects client’s privacy rights, further goes to show the protection of clients who have commissioned photographers to have their photographs taken.
The provisions of the Constitution supersede other legislation and it is an established position that all other laws that are inconsistent with the provisions of the constitution would be void to the extent of their inconsistencies; Section 1(3) CFRN 1999 (as amended).
The NDPR, a fairly new regulation promulgated in 2019 has greatly enhanced privacy rights of clients. These regulations largely align with Section 37 of the Constitution and remove contradictions that may have arisen from the controversies that surround copyright and photographers’ exploitation of client’s photographs.
In our perspective, privacy rights as protected by the Constitution and the NDPR supersede other seemingly existing rights held by photographers who have been commissioned by clients to take their photographs and one would agree that privacy considerations are to a very large extent important in the consideration of copyright in photography.
Copyrights in client commissioned photography should therefore not be considered in isolation, as more rights than one exist where a client has commissioned a photographer to take their photographs.
DISCLAIMER: LEXWORTH LEGAL PARTNERS, 2020
This document is intended only as a general discussion on the subject of this article. Please do not regard it as legal advice. We would be delighted to provide additional details or advice about specific queries, if required.
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