[Guest post] The Afe Babalola-Dele Farotimi saga: Copyright royalties for defamation?

The IPKat has received and is pleased to host the following guest contribution by Katfriend Seun Lari-Williams (University of Antwerp) on the ongoing legal battle between Chief Afe Babalola and Dele Farotimi, which raises the question whether it might be appropriate to seek copyright royalties as a remedy for defamation. Here is what Seun writes:

The Afe Babalola-Dele Farotimi saga: Copyright royalties for defamation?

by Seun Lari-Williams

The recent legal battle between Chief Afe Babalola, a Senior Advocate of Nigeria (SAN) and Dele Farotimi, a lawyer, author, and activist over Farotimi’s book Nigeria and Its Criminal Justice System has ignited multifaceted debates. While issues of free speech and defamation are central to some of the cases, they further raise a relatively underexplored aspect with the inclusion of a claim for royalties from the sale of the book. This maneuver blurs the lines between defamation and copyright law, raising questions about the appropriate remedies for defamation and the jurisdictional authority of courts in such matters.

A Kat reading Nigeria and Its
Criminal Justice System

Background

Farotimi's book, described as "brilliant, racy, and poignant", delves into the deep-seated corruption and systemic failures within the Nigerian justice system, exposing individuals and institutions some of which the author describes as complicit in these grave issues.

Apart from the more popular criminal libel case filed in Ekiti and the civil case filed by Adebayo Adenipekun SAN in a high court in Ibadan (suit no. 1/1442/2024), a lawyer from Afe Babalola’s firm, Kehinde Ogunwumiju SAN, has also sued Mr Farotimi for N500 million in a civil libel case at the FCT High Court in Abuja. Some forums have reported that among the prayers sought by the plaintiffs is an order for royalties from the sale of the book [see here, here, and here]. A question this raises is whether an alleged defamation entitles a plaintiff to the royalties from the sale of the allegedly defamatory work. In light of this, this article examines the implication of this unusual claim for royalties and the jurisdictional challenges it presents.

Defamation Remedies vs. Copyright Remedies

Defamation and copyright law are distinct legal frameworks with separate objectives and definitions. Defamation law safeguards an individual's reputation from false and harmful statements, regardless of whether the work containing those statements is protected by copyright. Copyright law, on the other hand, protects the rights of creators to control the use and distribution of their original works of authorship even if those works may contain defamatory material.

If defamation is proven, the remedies are well-established and are typically damages (to compensate for the harm caused), injunctions (to prevent further harm), and sometimes retractions or apologies.

Copyright law protects original works of authorship and grants creators exclusive rights to control their use. Copyright law allows for remedies such as: royalties unjustly earned or account of profits (compensation for the unauthorized use of copyrighted material); injunctions (to prevent further infringement); and damages (to cover financial losses caused by the infringement). It is worth noting that nothing under Nigerian defamation law entitles a plaintiff to share in the profits of an allegedly defamatory work, even if significant financial gains are made. Royalties are therefore a remedy reserved for copyright infringement cases, not defamation.

Thus, by requesting royalties from the sale of Dele Farotimi’s book, the plaintiffs risk conflating copyright law with defamation law. Royalties are granted when there is an unauthorised use of a copyrighted work, such as reproduction, distribution, or adaptation without obtaining permission from the author. This remedy therefore is only applicable when the court finds an infringement of copyright — not when a work contains allegedly defamatory content. In the relevant case, no claim has been made that the book infringes on Afe Babalola’s copyright or another intellectual property right. Instead, the claim is based on the assertion that the book contains defamatory statements, and without a successful copyright infringement action, there is no legal basis for awarding royalties or profits.

Jurisdictional Issues

Another significant issue arises with jurisdiction. Under Section 251(1)(f) of the Nigerian Constitution, the Federal High Court has exclusive jurisdiction over matters relating to copyright. If a plaintiff believes they are entitled to royalties for an unauthorised exploitation of their intellectual property, the proper venue for such a claim would be the Federal High Court, not the FCT High Court handling the defamation suit. However, by requesting remedies that fall under copyright law, the plaintiffs may be inadvertently complicating the relevant case and raising questions about jurisdictional overreach.

Implications for Creative and Legal Industries

This case has profound implications for authors, publishers, and the legal profession. Firstly, it underscores the critical need for plaintiffs to clearly distinguish defamation claims from copyright claims. This distinction is crucial to avoid jurisdictional challenges and ensure that the appropriate legal remedies are pursued. Furthermore, courts must exercise vigilance in evaluating defamation claims. They must guard against the misuse of such claims to secure remedies, such as royalties, that are unrelated to actual reputational harm.

Perhaps most concerningly, the pursuit of royalties in a defamation suit raises serious concerns about the potential for abuse. Powerful individuals or entities could exploit the legal system by leveraging defamation claims to extract financial gain beyond legitimate compensation for reputational damage. Seeking royalties in this context could become a tool to intimidate authors, journalists, and critics, potentially chilling free speech and discouraging the publication of works that may expose corruption, wrongdoing, or inconvenient truths. This chilling effect could have a detrimental impact on public discourse and the ability of society to hold those in power accountable.

Concluding Remarks

The Afe Babalola and Dele Farotimi case offers a valuable opportunity to reflect on the boundaries between defamation and copyright law. Remedies for defamation, where deserving, should be limited to damages and injunctions, without venturing into royalties or accounts of profits reserved for copyright disputes. However, if a plaintiff genuinely believes that their intellectual property rights have been infringed, the proper course of action would be to file a separate copyright case at the Federal High Court. For now, the conflation of remedies only complicates the matter, underscoring the need for clarity in both legal arguments and judicial rulings. Perhaps legislators should consider amending defamation laws to explicitly prohibit claims for royalties in defamation cases. The Nigerian Bar Association may also issue ethical guidelines for lawyers to discourage the pursuit of overly aggressive defamation claims.

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