Keeping the Copyright: Photographers’ control over their creations

LAW DIGEST WITH CLRN & ALP NG & Co.

MISS RASINE BROWN UBOM v. GLOBACOM NIGERIA LIMITED

SUPREME COURT OF NIGERIA

(KEKERE-EKUN; JAURO; UWA; UMAR; IDRIS, JJ.SC)

FACTS

Miss Rasine Brown Ubom (Appellant), an emerging musician who participated in the 2010 edition of “Glo Naija Sings,” a widely televised music competition organised by Globacom Nigeria Limited (Respondent). The competition held auditions across multiple zones, including Calabar, Abuja, Lagos, Port Harcourt, Enugu, and Ibadan, selecting three finalists from each zone to progress to the next stage. The Appellant excelled in the Calabar auditions, earning her place among the top three contestants from her zone. She, alongside other zonal finalists, was thereafter invited to Lagos, where the Top Ten contestants were chosen for the final broadcast stages. The Appellant was selected as part of this prestigious Top Ten and was designated as contestant number 9. The Top Ten performances were broadcast weekly on DSTV’s Africa Magic and Magic World, as well as on the Nigerian Television Authority (NTA), enabling viewers worldwide to vote via the internet, social media, and Glo phone lines, with eliminations conducted weekly based on the lowest votes.

After several weeks of rigorous competition and public voting, the Appellant advanced to the grand finale of the show, ultimately finishing as the first runner-up, while the contestant named Cassey emerged the winner. The winner was awarded substantial prizes including a cash sum of $100,000 (approximately ₦15 million at the time), a Toyota RAV4 SUV, and an endorsement as a Glo Ambassador valued at ₦20 million. Despite her laudable performance and final ranking, the Appellant received no prize, award, or formal recognition. Though disappointed, she accepted her fate and continued to focus on her music career. However, to her utter shock and dismay, she later discovered that the Respondent had used her photographs extensively in promoting the 2011 edition of the competition. Her images appeared prominently on billboards and in promotional materials across Nigeria to advertise the upcoming show, all without her consent or any form of compensation for the commercial use of her image and identity.

Feeling exploited and aggrieved by this unauthorised use of her image, the Appellant instructed her solicitor to write to the Respondent demanding compensation for the infringement of her rights. When the Respondent failed to respond or take any remedial action, the Appellant instituted legal proceedings at the High Court of Rivers State, seeking general damages for the unauthorised use of her image and injunctive relief to restrain further misuse. During trial, she testified alongside another witness and tendered four documentary exhibits marked as Exhibits A to D. Instead of filing a defence, the Respondent filed a motion dated 12th June 2012, challenging the court’s jurisdiction, contending that the claim related to copyright matters within the exclusive jurisdiction of the Federal High Court. The trial court agreed and struck out her suit. Dissatisfied, she appealed to the Court of Appeal, which upheld the trial court’s ruling on the basis that, in the absence of a clear contractual agreement between the parties, her claims fell within the purview of the Copyright Act. Still aggrieved with the judgment of the court below, the Appellant appealed to the Supreme Court. One of the issues raised for determination was Whether the Copyright Act and section 251(1)(f) of the 1999 Constitution applies to the facts of this case; the Court of Appeal having relied on same to hold the appellant as the copyright holder of the photographs used by the respondent to promote business.

ARGUMENTS

Learned counsel for the Appellant contended that at no point did the Appellant claim to be the copyright owner or author of the photographs used by the Respondent in its promotional materials. Counsel emphasised that the Appellant was not the photographer but merely a performer whose image was captured during the competition. Her grievance, therefore, did not relate to any infringement of copyright in the photographs but was grounded solely in the unauthorised and commercial exploitation of her image, likeness, and identity by the Respondent without her consent or compensation. Counsel argued that the Appellant’s claim was entirely distinct from a copyright infringement claim under the Copyright Act. According to him, the pleadings neither asserted authorship nor claimed any subsisting copyright in the photographs, nor was there any allegation regarding originality or assignment of copyright as required under the Copyright Act to ground such an action. Rather, the essence of her case was the wrongful appropriation and commercial use of her personality rights, which are actionable as misappropriation or passing off under general law and do not fall within the exclusive jurisdiction of the Federal High Court.

In counsel’s view, the trial court and the Court of Appeal erred in holding that the matter was within the purview of the Copyright Act merely because photographs were involved. He submitted that the claim was properly one of misappropriation of image and personality rights, falling squarely within the jurisdiction of the State High Court to adjudicate. Accordingly, he urged the Supreme Court to so hold and to set aside the decisions of the lower courts which erroneously divested the State High Court of jurisdiction over the Appellant’s legitimate claim for the unauthorised commercial exploitation of her image.

In response, learned counsel for the Respondent argued that the Court of Appeal acted correctly in affirming the decision of the trial court to strike out the Appellant’s suit for want of jurisdiction. Counsel submitted that the Appellant’s claim, when properly examined, fell squarely within the ambit of copyright law, thereby placing it under the exclusive jurisdiction of the Federal High Court as provided in Section 251(1)(f) of the 1999 Constitution (as amended) and the relevant provisions of the Copyright Act. Counsel contended that the gravamen of the Appellant’s complaint was the unauthorised use of her photographs, which in law constitute “artistic works” eligible for copyright protection under the Copyright Act. Thus, according to him, any dispute concerning their unauthorised reproduction, display, or commercial use necessarily amounted to a copyright infringement claim. In his view, the Appellant’s attempt to characterise the claim as misappropriation of image or personality rights was merely an effort to circumvent the statutory regime governing such works.

Furthermore, the Respondent’s counsel submitted that a holistic reading of the Appellant’s pleadings revealed no factual foundation for an enforceable contractual claim against the Respondent. Rather, the essence of her grievance related to the reproduction, publication, and use of visual material in which copyright subsisted. He therefore maintained that the proper forum for adjudicating such disputes was the Federal High Court, and urged the Supreme Court to uphold the concurrent findings of the lower courts striking out the suit for lack of jurisdiction.

DECISION OF THE COURT

In resolving this issue, the Supreme Court held that:

Under copyright law, the ownership of copyright in a photograph vests in the person who actually takes the photograph, namely the photographer, as the author of the artistic work rather than in the subject depicted in the photograph. The Court emphasised that the creation of a photograph involves the exercise of skill, labour, and artistic discretion by the photographer in capturing the image, setting the scene, and producing the final visual work. Consequently, while photographs are indeed eligible for copyright protection as artistic works under the Copyright Act, the legal rights to enforce such copyright do not extend to the subject of the photograph merely by virtue of being depicted in it. Unless the subject of the photograph is also the author, assignee, or exclusive licensee of the copyright, such subject has no locus to sue for copyright infringement.

In the instant case, the Supreme Court found that the Appellant never pleaded or asserted that she was the photographer, author, assignee, or exclusive licensee of the photographs used by the Respondent in its promotional campaign. Her claim was premised solely on the unauthorised commercial exploitation of her image, likeness, and personality without her consent or any compensatory arrangement. The Court therefore held that the Appellant’s cause of action was not one of copyright infringement but rather a claim rooted in misappropriation of personality rights and unauthorised use of image for commercial gain, which falls within the jurisdiction of the State High Court.

Issue resolved in favour of the Appellant.

K. O. Uzoukwu, Esq. for the Appellant
O. Okodiya, Esq., with E. Esedo, Esq. for the Respondent

This summary is fully reported at (2025) 6 CLRN in association with ALP NG & Co.
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