A while back, the Lady read an article on FAME Legal, which focused on whether or not Wizkid owned the rights to his stage name. That article ingrained some level of consciousness in the Lady about everyday IP matters. It was therefore only a matter of coincidence that the Lady came across this article a couple of days later about Wizkid and his new tattoo.
A tattoo of Fela Anikulapo Kuti’s image on Wizkid’s right arm (Source: Linda Ikeji)
Fela Anikulapo Kuti is a revered Afrobeat legend in Nigeria and around the world today. His influence on upcoming and established artistes cannot be overstated. As such, a lot of his works are sampled by artistes around the world. The Lady is aware that his Estate manages his IP portfolio granting licenses where required and protecting his IP rights from infringement.
While the Lady is aware that this is an image associated with the Estate, the Lady is uncertain whether or not the Estate owns the rights to this image. If the image does not belong to the Estate however, it probably belongs to the photographer. The Lady is curious as to whether this act of tattooing the image on Wizkid’s arm can be classified as an infringement of copyright in the image. This is assuming copyright does exist in the image.
By virtue of the Nigerian Copyright Act (Section 51), a photograph is considered to be an artistic work irrespective of artistic quality and is therefore eligible for copyright protection. The exclusive right granted includes the right of reproduction and making any adaptation of the work (Section 6). The doing of any of these acts will amount to an infringement. The Lady has carefully reviewed the exceptions from copyright control contained in the Second Schedule to the Act and notes that exceptions relating directly to artistic work are concerned with those works permanently situated in public spaces (Freedom of Paronama). There is, however, an exception by way of fair dealing for the purpose of private use. If the use is public, there ought to be an acknowledgement of title and authorship.
Some form of commercial transaction has occurred here, so does this still qualify as fair dealing? Who would be guilty of infringement – Wizkid or the tattoo artist? The Lady has conducted a preliminary research into the matter of copyright and tattoos and notes that the concern is usually whether or not the tattoo artist owns copyright in the tattoos created by him. There appears to be no decided authority on whether tattoos of copyrighted works may amount to an infringement of copyright. Perhaps, it is only a matter of time before we get one. In the meantime, you might just want to err on the side of caution with the images you get tattooed on your skin before you become a poster child for infringement .