Mercy Chinwo V Obidiz; Available Options For Remedy & Finding A Merit – Olufowose Samuel Esq.
Mercy Chinwo V. Obidiz; Examining The Available Options For Remedy & Finding A Merit Using The Elimination Method
In what appears as a “do not stain my white” reaction, a popular Nigeria gospel artiste, Mercy Chinwo, through her lawyer served a ‘Cease and Desist” notice on a secular music artiste, Obidiz Lawson for derogatorily using her name and image in a secular music audio and video which he in fact titled “Mercy Chinwo” with the image of the gospel artiste as the cover art for the song. She threatened a 2billion suit against Obidiz if he fails to put down the song on all DSPs. The opening line of the song reads: “Merxy Chinwo for Church o, but for club na Cardio B se …”
Obidiz, who thinks Mercy Chinwo is merely making a mountain of a molehill has reacted by tweeting: “na song I sing, I no kill person”.
Music enthusiasts have now had their ears to the wall waiting for what is to unfold and raising questions as to whether had been a legal breach at all.
Clearly, there is hardly a trace of copyright infringement in the allegation against Obidiz. One may be tempted to ask, if using a person’s image without consent is a copyright infringement, then why is Mercy Chinwo not claiming copyright but merely alleging defamation. The Copyrights Act, alludes to the possibility that even Mercy Chinwo may not be the copyright owner in that photograph(see Section 10(2) Copyright Act). Also, the song in dispute is an original song, which did not sample or interpolate any of Mercy Chinwo’s musical work. Again, the only corner of dispute is Obidiz’s use of Mercy Chinwo’s name and image in a secular song.
Shopping through the Available Options
Where there’s a wrong, there is a remedy, is a trite maxim in law. Mercy Chinwo considers it unacceptable that her name which she has solidly built on the foundation of the Christian faith is being mentioned “tarnished” in a secular music “music of the world”. She considers that this has brought her disrepute and portrayed her in bad light to the world.
Flowing from the above, one will admit that there is perhaps, a wrong done, if not absolutely a breach of law.
This, therefore evokes the need to critically examine if a law has been breached and what remedies could be patronized. The Courts are the custodians of the law, and by the realist school, the law is what the judge says it is. Therefore, without prejudice, the following examination is more academic than being an absolute statement on the law.
The Nigerian laws confer certain rights on individuals and by the instrumentality of the intellectual property laws, artists enjoy some other specific enforceable rights, such as right to exclusive use of their intellectual and industrial properties. Hence, a long range of possible rights exist, which on the surface may be an attractive claim for the complainant, including, copyright infringement rights, Trademarks right, right against defamation, right against passing off, right to privacy, data protection rights, image rights and more.
The Elimination Method
Employing the elimination method, one may streamline the rights above to arrive the most potently relevant right for the Mercy Chinwo’s case study.
To claim copyright infringement, the infringer must have used, published, distributed or done such acts calculated as infringing acts under Section 6 of the Copyright Act, against the work of the complainant. In this case, Obidiz has not ‘stolen’ particular any of Mercy Chinwo’s musical works or sounds. As stated earlier, by Section 10(2), Mercy Chinwo may not be the author/copyright owner of the photograph used, such as to allow her claim infringement on the photograph. Generally, the author or first owner of copyright in a photograph is the photographer, except otherwise agreed. Therefore, a claim for copyright infringement is eliminated and tells more why the ‘C&D’ letter written by Mercy Chinwo’s attorney did not particularly allege an infringement of copyright.
Further, there are no indications that the name “Mercy Chinwo” has been trademarked, such as to allow her claim infringement of trademark rights. Even if it has been trademarked, it is not absolute that a trademark claim may sustain except she’s able to show that the use of the name in the song creates a confusion as to her trade of music with that of Obidiz. A trademark claim is therefore eliminated in this instance.
On defamation, which is the basis of the ‘C&D’ letter addressed to Obidiz, also appears as an attractive claim but does not seem to be sustainable. The vital elements of defamation must be proved to succeed in a claim of defamation. Dissecting the tort of defamation, the court in Sun PUBLISHING LTD. V. ALADINMA MEDICARE LTD1 held thus:
“Defamation involves a false statement that defames or harms another person’s reputation. Defamatory statements are categorised as “libel” or “slander”. Libel is written or visual defamation and slander is spoken or oral defamation.”
The Court further listed extensively the elements of defamation to wit:
“Elements of tort of defamation –
The tort of defamation generally consists of the following elements:
(a) a false statement of fact;
(b) the statement must be capable of a defamatory meaning or by reason of an innuendo;
(c) the statement must be of and must concern another living person;
(d) publication to a third party;
(e) some degree of fault on the part of the person making the statement; and
(f) harm to the reputation of the person defamed.
In the application of the elements, where a statement is in fact true, no defamation action may be advanced, no matter how defamatory the statement is except where it carries a false implication. The disputed statement must also express or imply an assertion of fact rather than an opinion….”
Words are to be given their ordinary, everyday meaning as understood by a reasonable person of ordinary intelligence. In addition, the disputed statement must be capable of harming the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Statements that are merely embarrassing, unflattering or annoying are not defamatory. Rather, the statement must expose one to public hatred, contempt or ridicule, cause him or her to be shunned, and/or tend to injure one in his or her profession or trade.
In the instant case study, a cursory examination of the lyrics “Mercy Chinwo for Church o, but for club na Cardio B se..” does not literally appear as a defamatory statement or one that injure the person of the gospel artiste, Mercy Chinwo. Although, the courts have held that, a naturally non-defamatory statement may be held to be defamatory if within the context of use and surrounding facts not in the words, defamation can be imputed.
Thus, defamation may be eliminated, except that Mercy Chinwo is able to show strongly that the lyrics and picture use exposed her to injury and ridicule, in the face of right thinking public.
Now, the remainders are claims of Image rights, Passing off and Data & Privacy Protection rights, further examined seriatim:
Overview of Image Rights in Nigeria
The term “image right” refers to the legal right of an individual to use and prevent unauthorized or fraudulent use of their image. This right encompasses the use, appropriation, and exploitation of a person’s image, and includes the right to use their personality while prohibiting others from exploiting or using their image without permission.
Image rights (known as the right of publicity in the US) refer to a person’s right to commercialize aspects of his personality such as physical appearance, pictures or caricatures, signature, personal logos and slogans, and also the right to prevent other people from commercially making use of them.
Image Rights are sometimes referred to as publicity or personality rights and this right is infringed when a person’s likeness or identity is used for commercial purposes without the person’s authority. The issue of infringement of image rights is common in many areas of law including the Entertainment Law field.
The emergence of image rights in the Nigerian legal regime is nascent, if not unknown to the Nigerian jurisprudence. Thus, there is currently no specific legislation designated to protect image rights. However, provisions of other relevant laws allude to and protect image rights. These laws, from which image rights are derivable include: The 1999 Constitution of the Federal Republic of Nigeria (as amended), Nigeria Date Regulation, Copyright Act, Trademark Act, Cybercrime (Prohibition and Prevention) Act, Tort of Passing off.
Image rights mainly exist in two folds – on one hand, it connects with personality and character merchandising and it reflects the commercial interest of a person in respect of his image. On the other hand, it seeks to protect the privacy and the use of a person’s image for fraudulent or criminal purposes. Thus, image rights has prospect in civil and criminal actions.
However, it is worthy of note that, Image rights in Nigeria being a nascent and yet undeveloped area of law, suffers a dearth of judicial precedents in Nigeria. Similarly, there is no recognized image rights law in England. However, certain European Courts’ decisions and common law cases are instructive and serve persuasive purpose in understanding and in the development of image rights in Nigeria.
In fact, the court has dismissed the existence of Image rights in Nigeria, in the 2021 Court of Appeal decision in BANIRE v. NTA-STAR TV2 wherein the court held that under Nigerian law, a category of rights known as image rights did not exist, and that where a dispute arose with respect to the ownership and exploitation of rights in a photograph in Nigeria, the law per the provisions of Sections 10 and 51 of the Copyright Act, was clear in the sense that it is the photographer and not the person in the image that owns the copyright to the picture.3
The foregoing does not totally eliminate the chances of a claim of image rights, since the concept of image rights, although not expressly legislated in Nigeria is indirectly enforceable through the instrumentality of other existing laws, such as privacy law or passing off. Thus, The Court of Appeal held in DIGITAL RIGHTS LAWYERS INITIATIVES V NATIONAL IDENTIFICATION MANAGEMENT COMMISSION4that right to privacy extends to data protection which by definition of personal data includes image or photographs that give rise to image rights.
Passing Off
Closely knitted with the image rights is the tort of passing off. The action of passing off is used in situations where the consumer of a product is likely to be confused or misled by the product on sale or where the product in question has been ‘passed off’ as being endorsed by an individual. However, the tort has recently been extended to fill the void of image rights legislation in some common law jurisdictions like the United Kingdom. The courts have successfully found that where a celebrity is falsely held out as endorsing a good or commercial service, the holding out comes within the tort of passing off.5
The Court of Appeal considered that even though passing off applies mainly to goods and services, it could still apply to unauthorized use of images. Noting that there are no specific laws governing image rights in Nigeria, the Court of Appeal referred to the English cases of Irvine Vs. Talksport Ltd and Robyn Rihanna Fenty vs Aracadia Group Brands Ltd (T/A Topshop) & Anor, where the plaintiffs were celebrities suing for passing off for unauthorized use of their images.
The Court of Appeal held that both celebrities and “normal persons” may sue for the tort of passing off as it relates to image rights in Nigeria.
However, to succeed in such action, the plaintiff must establish tthat
(a) his/her image has acquired sufficient goodwill such as quantifiable goodwill which can be leveraged on in consideration for money;
(b) the infringer has misrepresented to the public by using the image and;
(c) this misrepresentation caused or is capable of causing damages such as reduction in the value attached to their goodwill.
Therefore, flowing from the above, passing off as it concerns image rights would mean a situation where a person uses another person’s image in a bid to misdirect or misrepresent to the public that such article carrying the image is endorsed by owner of the image.
This appears as a good claim for Mercy Chinwo, it could be shown that the use of her image for the cover art of the song “Mercy Chinwo” largely misrepresents an endorsement by Mercy Chinwo the gospel artiste and that such affects her reputable goodwill. Thus, the tort of passing off may be a good ground to claim against Obidiz
Data and Privacy Protection Rights
Also linked with image rights is the data protection right. One must state aptly, that data protection right emanates from a subsidiary law but finds a source in the Nigerian Constitution. Thus, data protection rights which includes image right is a fundamental human right under section 37 of the Constitution.
The Nigeria Data Protection Regulation 2019 (NDPR), issued by the Nigeria Information Technology Development Agency (the “NITDA”), defines personal data as any information relating to an identified or identifiable natural person. This definition extends to images of any person(the data subject). Hence, use of any information that concerns or identifies a person must be according to the provisions of the NDPR. Thus, for the processing of the personal data of any individual to be lawful, must be according to the provisions of the Data Protection Regulation.
This means that once an image can be used to identify a living individual, that image is likely to constitute personal data and the Data Protection Regulation would apply to it. Thus, any unlawful processing of a person’s personal data will amount to an infringement of his image rights and such infringement will be rendered actionable under the Data Protection Regulation.
The NDPR gives individuals who have been photographed or who are contained in an image (referred to as data subjects) the power to control their personal data. According to Article 2.2, anyone intending to process this personal data must comply with certain conditions in order for it to be lawful. These conditions include processing the data in a lawful, fair, and transparent manner. To lawfully process personal data, the controller (in this case, the Obidiz) must rely on at least one of the legal bases listed in the Regulation. These legal bases include
- obtaining the data subject’s consent,
- processing the data for the performance of a contract between the data subject and the controller,
- processing the data to protect the vital interests of the data subject or a third party, or
- processing the data to comply with a legal obligation or for reasons of public interest or authority.
Further, processing is considered fair when the data controller takes into account the interests and reasonable expectations of the data subject. The processing activities must not negatively impact the fundamental rights and freedoms of the data subject. Transparency requires that the data subject is provided with clear information on what personal data is being processed and how it is being used.
In the light of the above, it is beyond speculation that Mercy Chinwo may have a claim against Obidiz in data and Privacy breach, since Mercy Chinwo’s image was used (amounting to processing of her data) without her consent and arguably in an unfair manner.
However, the strength of an action upon a subsidiary legislation such as the NDPR is not ascertainable, in view, again of the provision for derogation of fundamental rights in Section 45 of the Nigerian Constitution.
Conclusion
The incident of unauthorized use of artiste’s image or name by fellow artistes is not uncommon in the music and showbiz in Nigeria. The Mercy Chinwo’s case has blown to prominence due to being the first in a long time to have be a potential subject of legal dispute. While, the next phase of action is keen awaited by entertainment enthusiasts, there is a need to reiterate again the inadequacies in the Nigerian Entertainment law regime, and the urgent need to expand government’s regulatory intervention in the space.
1 [2016] 9 NWLR 563
2 (CA/A/345/2017)
3 http://tundeadisa.com/2021/11/16/image-rights-vs-ownership-of-copyright-in-a-photograph-under-the-copyright-act-the-case-of-banire-v-nta-star-tv-ca-a-345-2017/
4 Unreported suit no CA/IB/291/2020
5 Prince-Alex Iwu, The Legal Regime For Enforcement of Image Rights- A Nigerian Question https://www.linkedin.com/pulse/legal-regime-enforcement-image-rights-nigerian-question-iwu
Image Credit: Daily Post Nigeria
About Author
Olufowose Samuel Esq. is a prolific writer, an entertainment lawyer with keen interest in research and the promotion of entertainment and intellectual property law in Nigeria. He is the founder of Inte-tainment Law Club.
