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Peter Obe v. Grapevine Communications Ltd.

Federal High Court

Judgement delivered on June 27, 2007
Citation: 40 NIPJD [FHC. 1997] 1244/1997
Suit No. FHC/L/CS/1244/97        Jurisdiction: Nigeria

 Judgement delivered by Coram Mustapher J.

Copyright in Photographs, Copyright Infringement, Fair Dealing, Unauthorized Publication of Photographs, Section 16(4) Copyright Act The court considered whether or not the Defendant was liable for copyright infringement when it published without consent, a photograph taken by the Plaintiff on the front page and on page 5 and 39 of the Grapevine Magazine.

SUMMARY OF CASE AND JUDGEMENT

On October 31, 1997, the Plaintiff — Peter Obe filed an action against the Defendants — Grapevine Communication for infringement of his copyright in a photograph. The photograph was taken by the Plaintiff during the Nigerian Civil War and in 1971, the Plaintiff published a collection of War photographs in a book titled “Nigeria Decade of Crisis in Pictures”.

Sometime in 1997, the Plaintiff was approached by the Defendants who sought to use one of the photographs contained in the collection published in 1971, but they were unable to obtain consent. The Defendant’s asserted that their representative had attempted to contact the Plaintiff without success and that a letter had been sent to the Plaintiff in furtherance of their request:

“This is a follow-up letter to my previous note and inquiry about obtaining an unpublished Nigeria Civil War photograph and cost, from your office for our magazine; Grapevine.  We write to inform your office that because of the non-availability of the unpublished Civil War photographs at your agency, Grapevine shall make use of some of your published photographs for our maiden edition.  Should you have objection or request for honorarium, please do inform us in the course of the weeks so as to assure the least disruption of our production.”

The Defendants subsequently published on the front page and on page 5 and 39 of the Grapevine Magazine of July 1997 and August 31, 1997, one of the photographs taken by Plaintiff during the Nigerian Civil War, without the consent of the Plaintiff who is the copyright owner of the photograph and gave photo credit to the Daily Times Nigeria.

At the trial court, the Defendants challenged the Plaintiff’s ownership of the photograph on the grounds that an original copy of the photograph was not produced before the court.  In addition, the Defendants relied on the defence of fair dealing and asserted that they had not infringed the Plaintiff’s copyright because they had obtained the photograph from the Daily Times Nigeria’s central library and that the photograph was “sought and borrowed… to depict a story of a historical matter of importance and of high public interest.”

After hearing the arguments on both sides, Judge Coram Mustapha held that the Defendant’s act of publishing the Plaintiffs photograph without authorization or license infringed the Plaintiff’s copyright in the photograph and in the book entitled “Nigeria Decade of Crises in Pictures”.  The Plaintiff was awarded the sum of N5,000,000 as general damages against the Defendant for the infringement of his copyright. He was also awarded the sum of N10,000,000 as additional damages for the Defendant’s flagrant infringement.

“This suit was filed on 31st October, 1997.  One needs not be an economist or an accountant to know that what the sum of N5,000,000 could purchase in this country at the time this suit was filed could not be purchased with the same amount today.  The value of the Naira has slid downwards.  Even for that alone, the Plaintiff should be awarded additional damages to the N5,000,000.   But far more than that, it has been established before this court that the Defendant has flagrantly infringed the copyright of the Plaintiff in that in spite of the fact that the Defendant received the Plaintiff’s letter… wherein the plaintiff objected to the publication of the photographs taken by him during the Nigerian Civil War and even threatened to take immediate legal action against the Defendant, the Defendant after insolently replying the Plaintiff in a letter… went ahead to arrogantly publish the photograph…… followed it up with another publication on pages 5 and 39 of the August Edition of same magazine is indicative of the fact that the publications was calculated to make profit and had benefited from the publication… the Plaintiff’s solicitor wrote to the Defendant… demanding an apology. Rather than apologising, the Defendant turned around like the tail wagging dog to demand for an offer of financial out-of-court settlement with apology from the Plaintiff. The Plaintiff is, therefore, hereby awarded the sum of N10,000,000 as additional damages.”

II.  OTHER CITATIONS

5 IPLR 372 [2003-2007]

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