A very common practice in the Nigerian diaspora community and in Nigeria is the use of fashion model images for commercial exploitation without consent. These photos are often used to advertise parties, products, and services.
Nneoma Anosike is a U.S. based Nigerian fashion model who rose to fame after winning the Elite Nigeria 2013 model competition. Anosike’s image has been allegedly used by a Nigerian bank to advertise the Bank’s products and services and Anosike has retained the services of her father, a Nigerian lawyer, who has now sued on her behalf under the claim of “passing off,” among others for the alleged unauthorized use.
Anosike claims that she was summoned by her modeling agency in the U.S., Ford Models, just prior to the renewal of her model contract, and asked about her image on the Bank’s Instagram page. She says the bank did not have her consent to use her image and their use has damaged her economically.
The Bank, on the other hand, allegedly claims they “sourced” her image via “social media for its weekly online motivational and educational series, intended to inspire going online users.”
Does the bank’s corporate social responsibility claim absolve it from legal liability?
Ms. Uduak’s Take
There are two rights that attach when a picture is taken. The first is a copyright that belongs to the photographer. If the bank used the picture without the photographer’s consent, it would be subject to a copyright infringement claim. The second is an image right that belongs to the person being photographed (the average man or woman, fashion model, or celebrity all have this image right). Often, in the fashion modeling world, a model has to sign a release to allow a photographer or her modeling agency to use her image. If there is no waiver or release, then the model can sue for the use of her image without her consent.
In the U.S., such a lawsuit would be under the claim of what is called a ‘Right of Publicity’. This right is state specific with California, and New York being one of the handful of states with such explicit image rights. In Nigeria, image rights are not explicitly provided for under the law. What you have is a legal theory called ‘Passing off.’ What it does is to prevent a defendant from misrepresenting that his or her goods or services are that of the plaintiff, or from acting as if the goods or services are associated with the plaintiff when it is not. The underlying policy is to avoid a person from siphoning the reputation of the plaintiff by deceiving the public to buy a product or service that is positioned as that of/or associated with the plaintiff when it simply isn’t.
In the bank’s case, its claim that its social responsibility goal absolves of it of legal liability is most likely not a strong argument. This is because as a general rule, when a company as large as the bank in this case uses an image like Awosike’s, its goal is to support its business interests. Motivating people on a weekly basis as a commercial bank is so they can think well of you, and make you their number one choice for banking. So, if you use the image of a professional model to send your motivational message, there is a probability people will think that model is endorsing your message, and also bank with you precisely because of who it appears is endorsing your product.
So you don’t get a pass just because your use is altruistic. I do note that these types of cases are fact specific. There have been cases in the U.S., for example, where courts have ruled that such corporate social responsibility actions are non-commercial.
Let’s see how this all plays out. In the meantime, what are your thoughts?
NOTE: For fashion law and fashion modeling law legal stories and commentary, visit me at www.fashionentlaw.com.
Excerpt from Premium Times:
“A Nigerian model based in the United States of America, Nneoma Anosike, has filed an action against Wema Bank PLC before a Lagos Division of the Federal High Court for allegedly using her photos for commercial purposes without authorization.
Ms. Anosike, 22, sued the bank through her father, Frank Anosike, who doubles as her lawyer, claiming N97 million as damages.
According to the plaintiff, the bank on April 11, 2016, used her photo for a commercial on social network platform, Instagram, without her consent or authorization from Ford Models Inc, her American management company.
Among her prayers, the plaintiff is seeking an order directing the defendant to pay N75 million for allegedly passing off her services.
She is also seeking an injunction restraining the defendant 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.
The plaintiff is also seeking an order directing the bank to pay her N20 million for the breach of her privacy by advertising her private correspondence; an order to publish a written apology in two national dailies in Nigeria and in the U.S.; and N2 million as cost of filing the suit.
According to the statement of claims attached to the suit, the plaintiff claimed that she is a reputable international model who had won many laurels within and outside the country, including the ‘Elite Model Look’ 2013 in Nigeria.
Ms. Anosike said based on her reputation, Pepsi-Cola Nigeria made her its brand ambassador for Aquafina water…”
Premium Times has the full story.
Photo Credit: Elite Model Nigeria
Photo Description: Anosike as a 2013 finalist at the annual competition
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