By Chiamaka Anyanwu
A couple of months ago, Nneoma Anosike, a Nigerian International Model and 2013 winner of the Elite Model Look, instituted an action, against Wema Bank Plc., a Nigerian Commercial Bank, for passing off and unlawful use of her Images. She alleged that her images were used on April 11, 2016 by Wema Bank Plc on their Instagram Handle for commercial purposes without her consent and that of Ford Models Inc., her U.S. Management Company. She claimed that as a reputable international model and a brand ambassador, her images and pictures would be seen by the public as an endorsement of the Bank.
Fords International drew Nneoma’s attention to the use of her pictures by the Bank and she brought a legal action against Wema Bank Plc. through her father, who also doubles as her lawyer, claiming the sum of N97 million as damages, N75 million for allegedly passing off her services, N20 million for the breach of her privacy by advertising her private correspondence, N2 million as cost of filing the suit, an order directing the bank to pay her and an order to publish a written apology in two national dailies in Nigeria and in the U.S; and an injunction restraining the Bank from passing off or causing others to pass off her professional services and a declaration that she is entitled to her privacy of her correspondence under Section 37 of the Nigerian Constitution.
Wema Bank Plc in its defense, averred that the images were not used for commercial purposes, rather, the images were for its weekly online motivational and educational series, intended to inspire going online users. The Bank also claimed that the images were for purely free educational purpose under its Corporate Social Responsibility program.
Proprietary or otherwise of Wema Bank’s Defense
Under the Copyright Act, the use of any work for educational purposes must be in an approved educational institution for the educational purposes of that institution.
Fair dealing, as provided under the Copyright Act applies where the work was used for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast. Lord Denning himself declared that it is impossible to define what fair dealing is, as it is a question of degree. The four conjunctive factors used in determining fair use are purpose, nature or type of work, amount used and market effect. The purpose to which the work was applied to must not transform it or create a new meaning of the work in the minds of the audience. In order words, the user must limit itself to the meaning to which the work was created. The nature of the work arises in the case of an unpublished or fictional work. The use of an unpublished or fictional work will more likely fail the test than the use of a published or a non-fiction.
The amount of work used boils down to whether a substantial part of the work was used. An unsubstantial quantity of the work might be used, but where that unsubstantial quantity happens to such that it can be described as the “soul” of the work, then the defense of fair use will fail.
In determining the effect on the potential market, the emphasis is on whether the use of the work will have a financial impact or compete commercially with the owner’s right to the exploitation of his work.
An institution not approved for educational purposes cannot claim educational use of a copyrighted work. However, the mere fact that a work was used in an educational institution does not make its purpose educational. The context in which the work was used is also critically analyzed. For example, the use of a work in a classroom to teach topics in relation to the curriculum is educational, but the use of a work for fun in an educational institution is not educational. Sometimes, it might not really matter that the institution is not stricto senso, an educational institution. In order words, the focus is on the intention behind the use of a work. The work must be used to impact some knowledge within the targeted audience, notwithstanding that the institution is a profit making institution.
If a work is used for non-profit educational purpose, albeit by a profit making institution, its use must be limited to the original purpose and intention behind the work. The profit making institutional user must also not stand to gain any goodwill from the use of the work. A Bank is not an educational institution and so it might have a hard hurdle to cross in proving educational purposes of a copyrighted work. It must not have held out the work (in this case, a photograph) or the owner of the work (in this case, Nneoma Anosike) to be endorsing the Bank. It also must not have gained or expecting to gain any goodwill from the use of the work. It is immaterial that the goodwill does not have any financial impact or commercial competition with the owner’s exploitation of his work. The goodwill is an added value to the brand in question and that is enough competition with the owner’s right to the exploitation of his work.
Where there is a public use of a copyrighted work, whether for educational purposes or fair dealing, the law requires that there be an acknowledgement of the title and authorship of the work. Anything to the contrary suggests that the work was created and is owned by the user and where that is not the true position, it leaves room for a copyright infringement suit. If in this case, there was no acknowledgement of the author, owner or source of the photographs in question, it creates an impression that Wema Bank Plc is the author and owner of the said photographs.
Organizations and Institutions are encouraged to give back to the society through CSRs. However, in the exercise of their CSR, the law expects them to recognize and respect the rights of an owner to his work. In order words, the CSR, educational or not must not compete with the owner’s commercial exploitation of his work. The exclusive right of the owner to the exploitation of his work prevails before any other right, and the law is always willing and ready to protect a right owner’s interest in his work as against an infringer.
This article was published as part of NLIPW Copyright Law Vol. 3 No. 1, July 27, 2017.
About the Author
Chiamaka Anyanwu is a Solicitor and Advocate of the Supreme Court of Nigeria. She is a graduate of University of Nigeria, Nsukka and also of the Nigerian Law School. She is a prolific writer with an ardent interest in Intellectual property law. Chiamaka works in the Intellectual Property law practice at the law firm of Adeleye & Adeleye, in Lagos, Nigeria. She can be reached at firstname.lastname@example.org.