The Battle for the Lens: A Critical Reflection on Copyright Ownership in Photographs under Nigerian Law

By P.L. Osakwe

■ Introduction.
In the intricate dance of visual storytelling, few legal issues stir as much intellectual curiosity and creative tension as the question: Who owns the copyright in a photograph? Is it the photographer who clicks the shutter, adjusts the lens, and sets the lighting? Or does authorship also extend to the person in the photograph — whose facial expression, pose, style, and sometimes even concept might be essential to the final image?

This article critically interrogates the current state of Nigerian copyright law with a specific focus on the Copyright Act 2022, juxtaposing it against both judicial interpretations and philosophical notions of authorship. It argues that copyright ownership in photographs, particularly those involving human subjects, must be reimagined to account for shared authorship where creative contributions are evident.

■ The Copyright Act 2022: Key Provisions on Authorship and Photographs.

Nigeria’s current copyright regime is governed by the Copyright Act 2022, which repealed the 2004 Act (Cap. C28, LFN 2004) and introduced several progressive definitions and rights frameworks. According to Section 2 of the 2022 Act:
“Author” in relation to a photograph means *the person who took the photograph.”
And under Section 2(1)(c):
“Photographic work” means a recording of light or other electromagnetic radiation on any medium on which an image is produced or from which an image may by any means be produced, and includes works produced by a process analogous to photography."
By these definitions, the photographer is the sole author and first owner of the photograph, unless there is a contract to the contrary or unless it is a commissioned work.
However, this legislative clarity leads us to a deeper philosophical and legal challenge: Can someone else meaningfully contribute to the creativity of a photo without touching the camera?

■ The Philosophical Puzzle of Authorship in Photography.

Photography is not always the product of one mind or hand. Especially in portraits, fashion photography, and artful compositions, the person being photographed often does more than pose. They suggest a mood. They pick the setting. They emote. They create.
Yet, under Nigerian law, none of that matters unless it was done under contract as a commissioner.
This leads to a curious paradox: A person’s likeness and emotional labor can be exploited commercially without them holding any copyright interest, simply because they did not hold the camera.
Should the law evolve to recognize the subject as a co-author in such cases?

■Case Law and Interpretations: Has the Judiciary Resolved This?

● Judicial interpretations have not fully settled the question. Nigerian courts have largely deferred to the statutory definitions, especially in older cases.
● Where disputes have arisen, especially around ownership and unauthorized use of photographs, courts have applied the general rule that the photographer holds the copyright, unless:
● The photograph was commissioned for a fee, in which case the commissioner may own the copyright.
● There is a written agreement transferring ownership.
● The photographer was an employee acting within the scope of employment.
But rarely, if ever, have Nigerian courts gone as far as to consider the subject as having any claim of co-authorship, even where they contributed ideas, styling, or mood direction.

■ International Perspective: What Other Countries Are Doing.

In countries like the United States, Canada, and parts of Europe, courts have taken a more nuanced view:
US Law (under the Copyright Act 1976) generally holds the photographer as the author but allows for “joint authorship” if two or more parties intended to merge their contributions into a unitary work.

UK Law also defaults to the photographer but recognizes moral rights and specific agreements.
EU GDPR and image rights laws provide additional protections for individuals against unauthorized use of their likeness.

Nigeria’s Copyright Act 2022 remains traditional and single-authorship-focused — giving less attention to collaborative creativity, especially in image-making.

■ The Problem with Sole Attribution: Impersonation and Ownership Confusion.

One practical danger of this approach is the ease with which someone can falsely use a law firm name, artist signature, or photographer’s watermark to pass off another’s work as their own, especially in the digital space. If the only test of authorship is who held the camera, a fraudulent person can:
○ Snap a photo using another’s name or watermark.
● Upload or sell images under a firm name without permission.
● Claim ownership of work that was collaboratively created.
This becomes a breeding ground for impersonation and intellectual theft.

■ Commissioned Works: Who Owns the Photograph?
Under Section 9(2) of the 2022 Act:
" Where a photograph is commissioned for valuable consideration, the person who commissions the work shall, in the absence of agreement to the contrary, be the first owner of the copyright."

This shifts the burden of ownership from the photographer to the commissioner. However, it still ignores the subject’s contribution, unless they happen to be the commissioner. Imagine a case where a fashion designer commissions a photographer to shoot a model wearing their clothes. The designer owns the copyright. The photographer is the author. And the model — who performs the vision and appears in the image — owns nothing.

■ The Way Forward: Proposals for Reform.

To align Nigerian copyright law with the collaborative nature of modern creativity, we must consider the following reforms:
1. Recognize Joint Authorship in Photographs Where the subject contributes ideas, poses, styling, or concepts beyond the ordinary, the law should allow joint authorship.
2. Expand Moral Rights to Subjects Even if they do not own the copyright, subjects should be protected from the unauthorized commercial use of their image.
3. Define “Creative Contribution” Beyond the Camera Creativity should not be limited to technical execution. Contribution of mood, pose, message, or concept should count.
4. Mandatory Attribution Where possible, all creative contributors should be named, especially in editorial or commercial contexts.

■ Conclusion: Revisiting Ownership Through the Lens of Justice.

The Copyright Act 2022 rightly seeks to provide clarity in a digital age, but it still falls short of recognizing the full scope of human creativity in image-making. While the photographer’s technical skill is undeniable, many great photographs are the product of shared imagination.
In a time where image is identity, and photographs shape careers, influence culture, and carry deep emotional weight, Nigerian copyright law must adapt to offer not just protection but fairness.
Because sometimes, the person behind the lens didn’t create the magic alone.