Navigating Image Rights Without Formal Contracts: Legal Protections and Ethical Considerations for Models and Brands

Contributor: Oby Edna Umeh

INTRODUCTION

In the business of fashion and advertising, image rights have become a critical yet often overlooked aspect of the industry. The use of a model’s likeness without formal contracts can lead to significant legal and ethical dilemmas for both brands and individuals^[1]. As the digital landscape evolves, where images are shared and repurposed, understanding the nuances of image rights, especially in the absence of a contract becomes very essential. This article aims to illuminate the legal protections available and the ethical considerations that both models and brands must navigate in these complex interactions.

At the heart of the issue lies the concept of consent. While formal contracts are ideal for delineating usage rights, many collaborations in the fashion world still occur without them, leading to ambiguity regarding how a model’s image can be used.^[2] In such cases, implied consent and common law protections may come into play, but these can vary widely depending on specific circumstances.

Moreover, the ethical dimensions of using a model’s image cannot be understated. Respecting a model’s autonomy and ensuring clear communication are paramount in fostering trust and integrity in the industry. By examining best practices and offering guidance on informal agreements, this article will serve as a resource for models and brands alike, promoting an industry standard that prioritizes ethical engagement while navigating the complexities of image rights.Top of FormBottom of Form

UNDERSTANDING IMAGE RIGHTS

An image is a physical likeness or representation of a person, animal or thing that has been photographed, painted, sculpted or made visible. Image rights refer to the use, appropriation and/or exploitation of a person’s image, and include the expression of a personality in the public domain^[3]. They incorporate the right to use a person’s personality and prevent other parties from exploiting or using that person’s image or likeness without his or her permission and encompass the commercialisation of such rights. ^[4]

LEGAL FRAMEWORK

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 ^[5]

The Nigerian Constitution does not explicitly address image rights or the right of publicity. However, certain fundamental rights may be invoked in relation to image rights: for instance, Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees the right to privacy of individuals, which seeks to protect individuals from unauthorized use of their likeness. This right implies that individuals have control over how their image is used, particularly in commercial contexts, where improper usage can lead to exploitation or reputational harm.

Additionally, Section 39 of the Constitution enshrines the right to freedom of expression, a principle that is crucial in media and advertising. In situations where a model’s likeness is used without consent, there could be potential legal implications stemming from an infringement on their privacy rights.

NIGERIAN DATA PROTECTION ACT 2023^[6]

Sections 25, 26 and 51 of the Nigerian Data Protection Act 2023 emphasize lawful processing and respect for data subjects’ rights. Particularly it requires that consent be obtained from individuals before processing their personal data, while also giving them the right to object to the processing of their personal data.

COPYRIGHT ACT 2022^[7]

The Nigerian Copyright Act plays a crucial role in the protection of image rights, particularly regarding the use of photographs and other artistic works that feature models.^[8] Under the Act, photographs are classified as artistic works, granting the photographer exclusive rights to reproduce, distribute, and display their images.^[9] This framework underscores the importance of obtaining consent from the photographer as well as from the model depicted, as unauthorized use of a model’s image can infringe on both the copyright holder’s rights and the personal rights of the individual^[10]. By understanding these legal protections, brands can avoid potential legal pitfalls when using images in their advertising campaigns.

Moreover, the Act also incorporates moral rights, which safeguard the creator’s reputation and the integrity of their work.^[11] This aspect is particularly relevant in fashion advertising, where a model’s likeness may be used in ways that could misrepresent or damage their personal brand. Therefore, it is essential for both models and brands to engage in clear communication and ensure proper agreements are in place, even in the absence of formal contracts. By doing so, they can navigate the complexities of image rights and copyright, fostering a more ethical and legally compliant industry^[12].

TRADEMARK ACTTop of Form

Under the Act, individuals can register their names or images as trademarks, which allows them to control how their likenesses are used in advertising and branding. This legal protection is vital for models and public figures who want to prevent unauthorized commercial exploitation of their image. By registering their likeness as a trademark, they can take legal action against any unauthorized use, thereby safeguarding their personal brand and ensuring that their image is associated only with the products or services they endorse^[13].

In addition to formal registration, the Act also recognizes common law rights, which can protect individuals even without a registered trademark. If a model’s likeness has acquired distinctiveness through consistent use in the marketplace, they may have grounds to challenge unauthorized usage based on established reputation. This aspect emphasizes the importance of proactive measures for both models and brands, highlighting the need for clear agreements and ethical considerations when using images. Understanding the Trademarks Act equips stakeholders with the necessary tools to navigate the complexities of image rights, promoting a fair and respectful relationship in the fashion and advertising industries.

ADVERTISING REGULATORY COUNCIL OF NIGERIA (ARCON) ACT 2022^[14]

Article 11 of the Advertising Practitioners Council of Nigeria’s Regulation on Code of Advertising Practice as enshrined in the Advertising Regulatory Council of Nigeria (ARCON) Act, 2022, clearly states that “The right of individuals to privacy shall be respected. Pictures, names, identity, and properties of individuals shall not be used in a manner that suggests their personal endorsement without prior consent. Proper contractual agreements shall be entered into by the agencies, advertisers, and individuals, and the contractual terms respected by all the parties.” Also, Article 24 states that “Where a testimonial or endorsement in any advertisement suggests or recommends the use of a product, the prior written consent of the model used shall be obtained before the exposure of such advertisement^[15].”

The Nigerian Contract Law Principles

The following are the foundational principles governing contracts in Nigeria

“For the contract to be validly made or entered into, there must be: (i) offer; (ii) Acceptance; (iii) consideration; (iv) Intention to create legal obligation (consensus ad idem); and (v) Capacity to enter in to contract^[16].

• Offer and Acceptance: The need for a clear offer by one party and acceptance by another.
• Consideration: Something of value must be exchanged.
• Capacity to enter into a contract: Parties must have the legal ability to enter into a contract.
• Legality: The purpose of the contract must be lawful.
• Intention to Create Legal Relations: Parties must intend for the agreement to have legal consequences.Bottom of Form

While informal agreements are common, the absence of formal contracts can lead to disputes over image usage rights. Understanding these principles is crucial for models and brands engaging in informal agreements regarding image rights.

Ethical Considerations in Image Rights

When navigating image rights, ethical considerations play a crucial role in fostering trust and integrity between models and brands. At the forefront is the principle of respect for the model’s autonomy. Models should have full control over how their likeness is used, particularly in commercial contexts where their image can significantly impact their reputation and career. Brands must prioritize obtaining informed consent, ensuring that models fully understand the scope and implications of the usage of their images^[17]. This approach not only upholds the dignity of the individuals involved but also helps to build a positive brand image, showcasing a commitment to ethical practices^[18].

Furthermore, transparency in communication is essential. Brands should engage in open discussions with models about the intended use of their images, addressing any concerns or limitations the models may have. This dialogue not only mitigates potential legal issues but also cultivates a collaborative environment that values the contributions of models. Additionally, brands should be mindful of the cultural and social implications of their advertising choices, avoiding stereotypes or misrepresentations that could harm the model’s image or perpetuate negative narratives. By prioritizing ethical considerations, both models and brands can work together to create a more respectful and responsible industry, ultimately benefiting all parties involved.

Best Practices for Models and Brands

To navigate image rights effectively, both models and brands should prioritize clear communication from the onset. Discussing expectations and boundaries regarding image use can prevent misunderstandings. Even in informal settings, drafting a simple written agreement can serve as a record of consent, outlining specifics such as the duration of use, platforms for exposure, and any compensation involved.

Documentation of verbal agreements can also be beneficial. Keeping records of communication helps resolve disputes if they arise, ensuring both parties understand the terms of image usage.

In the event of disputes, having a plan for resolution is essential. Mediation and legal counsel can facilitate negotiations and maintain professional relationships. Educating both models and brands about their rights under the legal frameworks discussed earlier empowers them to advocate for themselves effectively.

CONCLUSION

Navigating image rights without formal contracts requires vigilance, understanding, and respect for all parties involved. By fostering an industry standard that values ethical engagement and legal compliance, the fashion and advertising sectors can enhance their integrity and protect the rights of models effectively. This approach not only upholds the dignity of individuals but also promotes a positive brand image, showcasing a commitment to ethical practices. As the industry continues to evolve, prioritizing informed consent and transparency will be paramount in safeguarding the rights of all stakeholders.

SNIPPET

In the absence of formal agreements, understanding image rights and prioritizing consent is crucial for fostering trust between models and brands.

KEYWORDS

Image Rights, Consent, Ethical Considerations, Models, Brands, Legal Protections, Informal Contracts, Copyright Act, Trademark Act, Nigerian Data Protection Act, Privacy Rights, Advertising Ethics, Communication and, Trust.

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2. Orit Gan. The many Faces of Contractual Consent. Drake Law Review. Available at https://drakelawreview.org/wp-content/uploads/2015/01/gan-final.pdf accessed on 25th September 2024. ↑
3. Andrew Zola, Definition Image https://www.techtarget.com/whatis/definition/image Accessed 25th September 2024 ↑
4. International Bar Association Beyond the runway: understanding the scope of image rights protection under Nigerian law. Available at https://www.ibanet.org/image-rights-protection-nigerian-law accessed on the 24th September 2024 ↑
5. CFRN 1999 (as amended) ↑
6. NDP Act 2023 ↑
7. Cap C28 LFN 2004 ↑
8. Section 1 Copyright Act ↑
9. Section 2 Copyright Act ↑
10. Nigerian Copyright Act (2004) Cap. C28 ↑
11. Section 14 Copyright Act ↑
12. Section 34 of the Copyright Act ↑
13. The Legal Regime For Image Rights Protection Under Nigerian Law Idara Etiebet

    (S.P.A. Ajibade & Co.), available at  https://www.mondaq.com/nigeria/trademark/1200696/the-legal-regime-for-image-rights-protection-under-nigerian-law%20accessed%20March%202024 Accessed 24th September 2024 ↑

14. Cap. A7 ↑
15. Advertising Regulatory Council of Nigeria (ARCON) Act, 2022 ↑
16. Eyiboh V. Mujaddadi & Ors (2021) LPELR-57110(SC) ↑
17. Amaka Odozi, ‘Erica Nlewedim Bags Endorsement Deal With Mobile Phone Company, available at https://www.informationng.com/2021/01/erica-nlewedim-bags-endorsement-deal-with-mobile-phone-company.html Accessed 24th September 2024 ↑
18. Dara Oniosun The Role Of Law in Fashion https://inblackandwhite.ng/blog/post.php?pid=23 Accessed 24th Sepetmber 2024 ↑