So I somehow walked into an argument with a friend of mine the other day of which the true and current position on the topic has been on my mind for a few days now. I really Don’t remember how that happened but the issue sent me into a frenzy as I really hate to loose arguments. Here is how I got myself into the argument. So I just finally got my wedding album from my fantastic photographer and I was really impressed with the turnout as I was frankly scared that it would not look as dreamy as I had pictured in my mind (brides and their outlandish fantasy ideas right) so I didn’t waste any time to whip out my new priced possession albums for my guests to view on one fine Thursday evening. To my greatest pleasure, my guests were as impressed as I was when I first saw the albums. As they flipped through the pages of the albums many different topics ensued from each picture. From how hilarious a particular picture turned out; to how the photographer’s skills were beautifully displayed when she captured “emotions”. All small talk was warm and very welcome to massage my growing ego until one of my guests said and I quote “do you know that the photographer owns the copyright on your pictures?” basically she could do what she pleases with my pictures. I thought that idea was ridiculous and I did not hesitate to mouth out that fact. I knew that we had moved from small talk to big business. The room was instantly heated up in arguments and legal talk on what does or should apply. I against guest and my husband trying to be diplomatic by trying to see the sense in both views. Of course myself and guests did not budge on our own lawyerly opinions on the issue.
My Guest opined that when a photographer takes shots, he/she as the author of that image has the copyright on the pictures over and above any other. This is regardless of if the pictures have been paid for. I thought this idea was weird and ridiculous. How can I pay for someone to do a job and the person still can hold on to rights of my own personal images that I paid to be taken?
The night ended quite pleasantly; warm hugs and kisses goodnight, but silently I knew this argument was definitely not over.
I tried to forget about the argument for a couple of days, but as I said I really hate to loose arguments. So I went on my own literal photobomb expedition.
While on my research I stumbled on the American copyright article which agreed 100% with my guest’s position. The author states that Under U.S. copyright law, the original owner of a created work is exclusively the creator, unless it’s a ‘work for hire’. The author therein stated that in the wedding scenario, a photographer is hardly ever ‘for hire,’ Even though married couples spend thousands for a photographer to cast their most memorable moments in just the right light, they may never actually own the results and also, the fact that the photographer hands you a cd, hard copy, or soft copy of pictures taken of you does not mean he has handed you the rights to those pictures. Hmmm interesting I thought to myself, but still confused; plus, that one is the Americana situation; so back to Nigerian scenario to find something that makes more legal sense to me or at least someone or something that could explain this crazy phenomenon to me.
It also occurred to me that I have come across this topic a number of times in the past but I lazily brushed aside the thought of researching the crux of the matter. For instance, the 2face and Annie Idibia suit of 2013, where the an un-commissioned and uninvited photographer took wedding photos of 2face and his bride. Secondly; a client of mine who also happens to be in the entertainment industry had complained to me about his photographer who had uploaded pictures recently taken on social media as publicity for his photography career. This was done without any recourse to my client and even before he had seen the said pictures. And oh thirdly, back to my wedding album, one of my photographer’s crew members had uploaded some very nice shots of the wedding for publicity on her Instagram page (Of course I immediately demanded that he takes down the shots before I blink my eyes). These are only a few incidents out of the thousands that occur on a daily basis in the new era of the growing photography sector.
So now to answer this lingering question of where the copyright stands with commissioned/hired/paid photographers in Nigeria, I have cast away the spirit of laziness and procrastination and buried my face first to the copyright act itself, my findings made me smile in 8 different ways. inside smile, outside smile, evil smile, happy smile, confused smile, wide smile, one sided smile, haahahaaa I told u so smile. (yes, 8 different types of smiles).
Section 10 Copyright Act, CAP C28 Laws of the Federation of Nigeria, 2004. States as follows:
- (1)Copyright conferred by sections 2 and 3 of this Act, shall vest initially in the author.
(2) Notwithstanding subsection (6) of section 10 of this Act where a work-
- is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or
- not having been so commissioned, is made in the course of the author’s employment,
the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under contract.
(3) Where a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of ]any agreement to the contrary, be the first owner of copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical,; or to the reproduction of the work for the purpose of its been so published; but in all other respects, the author shall be the first owner of the copyright in the work.
(4) In the case of a cinematograph film or sound recording, the author shall be obliged to conclude, prior to the making of the work, contracts in writing with all those whose works are to be used in the making of the work.
Now here’s were the confused smile and happy smile came in. I had to read this provision about 10 times to get the gist. (legislative drafters right). So here’s how I see this provision:
In Nigeria the photographer owns the copyright to pictures he has taken as a general rule. However, the following situations are exceptions to this rule.
- CONTRACT OF APPRENTICESHIP: where a photograph is taken under an apprenticeship relationship, the rights of the photograph belongs to the trainer or master.
- CONTRACT OF EMPLOYMENT WITH A NEWSPAPER MAGAZINE OR SIMILAR PERIODICAL: in this case section 10(3) of the copyright act stipulates that the rights to such works belong to the proprietor in the absence of any contrary agreement in so far as publication is concerned.
- CONTRACT OF EMPLOYMENT: reference to section 10 (1)(2)(a) (which I had to read really slowly, and aloud several times). And here is where I had my fifty shades of smiles; “… commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or… the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under contract.” Where a photographer is an employee of a company instructed to take the photos or is an employee whose duties include or require photography, the photographer will be acting on behalf of his employer, and as such the copyright in photographs taken by the employee in the normal course of business will belong to the employer. In simpler words, a work done by a commissioned person or employee belongs to the employer or commissioner.
- ASSIGNMENT: A photographer may assign his copyright by written agreement. This will supersede the provisions of the law. If there is a written contract or an agreement signed by the photographer assigning copyright to another party, then the rights will be deemed to belong to the assignee.
- GOVERNMENT COMMISSIONING: Section 4.(1) Copyright shall be conferred by this section on every work, which is eligible for copyright and is made by or under the direction or control of the Government, a State authority or prescribed international body. Such rights are conferred on the Government on behalf of the Federal Republic of Nigeria.
- LAPSE OF TIME. The 1st schedule to the copyright act provides that an author of a photograph can exercise exclusive rights on his photo for a period of 50 years after the end of the year in which the work was first published., after which he looses the exclusive right on the said work.
- CONTRACT FOR SERVICE: where I have commissioned the services of the photographer, I am the employer of the photographer’s services under a service agreement, the rights on my photographs and album belongs to me. And yes I had to ponder on the issue of the; “Of or For Service”. I found the key word to be “Commission” as contained in Section 10 of the Copyright Act; my interpretation is that once someone has paid for the service of the photographer under a contract of any nature, without an agreement stating that the right will belong to the photographer, such rights will be vested in the commissioning party. Therefore, whether you employ the photographer under a contract of service or employ the services of the photographer for a specific purpose, this law will apply.
Nigerian case law further buttressed this point in the case of Joseph Ikhuoria v. Campaign Services Ltd and Anor, the court noted that when a person commissions the taking of a photograph or the painting or drawing of a portrait or undertakes an engraving and pays or agrees to pay for it in money’s worth and the work is made in pursuance of that commission, the person who so commissioned the work is entitled to any copyright in it as an original work. See also Kolade Oshinowo v John Holt Group Co  FHCR 308.
On this same point in my research journey, I also found a very interesting post online which I totally align myself with. It said in summary that although when the photos are taken, the photographer owns the copyright to the photos. The writer further made a distinction between license and other rights. He stated that the licence represents the leave to reprint (i.e., use the photos for personal use, such as on Christmas cards or in a wedding photo book), for which the photographer may charge an extra fee. This is so for the sole reason that the photographer will lose out on the money that you would have paid for the prints. All other rights are purchased off the photographer upon the payment of the fees. The photographer however is free to charge an extra and separate fee for the release of all the rights as mentioned in a contract. But to me, I know I will only agree to a payment of extra charges if the photographer is Madame TY Bello!
As regards the 2face and Annie Idibia matter mentioned above, I think this is an issue of facts which will be discussed another day where the issues for determination will be whether or not a photographer can claim copyright on an unauthorised or illegally acquired photograph, or the copyright for paparazzi, I’ll find a catchy name (Watch out for part 2).
Therefore, ladies and gentlemen, it is with great pleasure that I state that in my firm opinion that, my husband and I own our beautiful wedding photos, album, and all rights connected thereto. As I said, I hate to lose an argument.
http://www.academia.edu/4673044/Who_Owns_Copyright_under_the_Nigerian_Copyright_Act; viewed 13th July 2016. Who Owns Copyright under the Nigerian Copyright Act; by Meshack Okezi
Impact of the World Trade Organisation TRIPS Agreement on the Intellectual Property Law of Nigeria; by Temitope Oredola Oloko; http://repository.up.ac.za/dspace/bitstream/handle/2263/53216/Oloko_Impact_2015.pdf?sequence=1&isAllowed=y; viewed 11th August 2013
 http://apracticalwedding.com/2015/09/wedding-photography-contract/; by steven Portland; viewed 11th august 2016.