INTRODUCTION On the 3rd of September 2018, it was reported that international sculptor and former student of the Obafemi Awolowo University, Dotun Popoola, had threatened to sue the University to the tune of N200 million for destroying a sculpture of Nobel laureate, Professor Wole Soyinka, which the Artist made as his final year project in the institution. According to the reports, the University had removed the head of the art work and placed it on top of a ridge in a newly built museum in honour of the celebrated Nobel laureate. In the words of the Artist: “I appreciate the fact that the institution recognised that the work is outstanding enough to represent the museum that was donated to Soyinka. If it wasn’t good, the institution would have commissioned another artist somewhere to produce a work for them… The intellectual aspect of the work is that the portrait was placed on three books of Soyinka which represent poetry, prose and drama, that gave him his Noble prize. But I went to the university to discover that the books were destroyed, head of the piece removed, and my signature and date of execution cut off… That was why I feel pained to see the work beheaded and placed on the roof. Anytime I travelled to the US and returned with white Americans, I would always take them to the site in the university to show them my work,” In response to his claims for the violation of his rights and the mutilation of his work, a lecturer of the institution was reported to have said that the “student has no right again over his project after he has left the school because he has been given the award, which is the certificate. The project is what he submitted to get the certificate.” While the arguments on this issue may not be as straight forward as “yes” or “no”, it is important to point out that the issue in contention between the Artist and the University is a novel one and intellectual property enthusiasts would hope the parties fail to settle this amicably, in other to give our courts the opportunity to enrich our understanding on this area of law. In the main however, this article attempts to briefly consider the provisions of the Copyrights Act in Nigeria in light of the issue thrown up by this case. IS THE ARTISTIC WORK ELIGIBLE FOR COPYRIGHT? In Nigeria, the Copyrights Act Cap 28 Laws of the Federation of Nigeria, 2004 is the principal legislation on copyrights and the Act provides that “artistic works”, including works of sculpture, are eligible for copyright. By Section 1 of the Act such works are eligible if: (a) sufficient effort has been expended on making the work to give it an original character; (b) the work has been fixed in any definite medium of expression from which it can be perceived. Provided however that the work was not intended by the author to be used as a model or pattern to be multiplied by any industrial process. By the above provision of the Act, the work of sculpture by the Artist in the instant case is a work eligible for copyright under the Nigerian copyright law. The pertinent question however is “who has the copyright in the work?” Is it the University or the Artist who produced the work as his project work? WHO IS THE OWNER OF THE COPYRIGHT IN AN ARTISTIC WORK? Section 10 of the Copyright Act specifies the right to first ownership of copyright and clearly states that copyright in an artistic work vests initially in the author. Section 51 of the Act defines “author” in the case of literary, artistic or musical works, to mean the creator of the work. The only exception to the copyright being vested in the creator of an artistic work is where the artist makes the work in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship for the purpose of its publication in a newspaper, magazine or similar periodical (Section 10 (3)). Furthermore, Section 10(2) recognizes that a commissioned artist may by contract sign-off his right to first ownership of the copyright. The above exceptions in section 10(3) do not apply to a work of sculpture since the work cannot be published in such format as described therein. Whether the exception in section 10(2) applies would however depend on what documentations the Artist signed as a student in the course of his project application and submission process and whether those documents signed-off his copyright to the project work. It is also arguable whether a Student who produces work as a school project can even be said to have been “commissioned” to produce the work. WHAT RIGHTS WOULD THE CREATOR OF AN ARTISTIC WORK HAVE? As stated above Section 10 vests copyright in a work eligible for copyright initially in the author. It is noteworthy however that the authorship rights and the copyrights in an artistic work are different rights. While the copyright may be assigned or contracted away from the first copyright owner, the authorship rights cannot be signed or alienated. The author of a work must always be recognised as the author. This is the provision under the clear wordings of section 12(1) of the Copyright Act, which states that a creator of an artistic work as the author of the work has the right to:
- to claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts on the work.
- to object and to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation.
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