The recent news about Jennifer Lopez reportedly being sued for sharing a picture she didn’t hold the copyright to highlights a fascinating and often misunderstood intersection of law: copyright, privacy, and personal data. While the image itself undeniably depicts her, a data subject under data protection laws (GDPR), the act of sharing it can trigger an entirely different legal framework. This article will delve into what copyright and privacy entail, their fundamental differences, and at what point the sharing of personal data by the data subject themselves can become a copyright issue.
What is Copyright?
Copyright is a legal right that grants the creator of an original work exclusive rights to use and distribute that work. This means only the copyright holder can reproduce, publish, perform, display, or create derivative works from the original. Copyright protects a wide range of creative expressions, including literary works, musical compositions, artistic creations (like photographs), and software. Crucially, copyright protects the expression of an idea, not the idea itself.
For a work to be copyrighted, it must be original and fixed in a tangible medium. In the context of a photograph, the moment the shutter clicks, if the image is original, copyright automatically vests in the photographer (or their employer, if taken in the course of employment, or whoever they assign the copyright to). The subject of the photograph, even if they are a famous celebrity, generally does not hold the copyright to the image itself.
What is Privacy?
Privacy, in a broad sense, refers to the right of individuals to control their personal information and to be free from unwanted intrusion. It encompasses various aspects, including informational privacy (control over personal data), physical privacy (freedom from surveillance), and autonomy (freedom to make personal decisions).
From a data protection perspective, particularly under the General Data Protection Regulation (GDPR) and most national data protection laws, privacy is primarily concerned with personal data. Personal data is any information relating to an identified or identifiable natural person (data subject). This includes names, addresses, identification numbers, location data, online identifiers, and, critically, images of individuals. The data protection laws (GDPR and many others) grants data subjects significant rights over their personal data, including the right to be informed, the right to access, the right to rectification, and the right to erasure (the “right to be forgotten”). Organizations that process personal data must have a lawful basis for doing so and must adhere to principles of data minimization, accuracy, and security.
The Key Differences: Copyright vs. Privacy
While both copyright and privacy deal with control and rights, their focus and scope are distinct.
Subject Matter Copyright protects works of authorship (e.g., a photograph, a song, an article). Privacy protects personal information about an individual (e.g., an individual’s face in a photograph, their name, their address). Beneficiary Copyright primarily benefits the creator of the work. Privacy primarily benefits the individual whose data is being processed. Nature of Right Copyright is a property right, granting exclusive control over the use and distribution of a creative work. Privacy is a fundamental human right, protecting an individual’s autonomy and control over their personal life. Enforcement Copyright infringement often leads to civil lawsuits seeking damages or injunctions. Privacy violations under data protection laws (GDPR and other laws) can result in significant fines imposed by data protection authorities, as well as individual claims for damages.
When Personal Data Becomes a Copyright Issue (Even for the Data Subject)
This is where the Jennifer Lopez case becomes particularly instructive. While a picture of Jennifer Lopez is undoubtedly her personal data, the copyright to that picture belongs to the photographer who captured it.
Here’s how a personal data (an image) shared by the data subject can become a copyright issue
The Photographer Owns the Copyright: When a photographer takes a picture, they generally own the copyright to that image. This is true even if the subject is a celebrity or if the picture is taken at a public event. Using the Image Without Permission: If the data subject (Jennifer Lopez in this case) then takes that copyrighted image and shares it on their social media, publishes it, or uses it for commercial purposes without a license or permission from the copyright holder, they are infringing on the photographer’s copyright. No Automatic Transfer of Copyright: The fact that the image depicts an individual (making it their personal data) does not automatically transfer copyright ownership to that individual. Data protection laws (i.e. GDPR) gives data subjects rights over their data, not over the copyright of the creative work that contains their data. Licensing and Waivers: To avoid copyright infringement, individuals would need to obtain a license from the photographer, which grants them specific rights to use the image. In some cases, a photographer might waive their copyright or assign it to the subject, but this is not the default. Commercial Use vs. Personal Use: While the specifics of “fair use” or “personal use” exceptions can vary by jurisdiction, generally, sharing an image that is publicly available for personal, non-commercial purposes might fall under certain exceptions. However, when a celebrity shares an image on their highly visible social media channels, it can often be seen as a form of promotion or commercial use, even if not directly monetized. This significantly increases the risk of a copyright infringement claim.
In essence, while an image of you is your personal data, and you have privacy rights concerning its processing, the image itself as a creative work is subject to copyright law, which typically vests in the photographer. You have a right to control how your image is used in terms of privacy (e.g., consent for its processing, right to erasure), but you do not automatically have the right to reproduce or distribute the image without the copyright holder’s permission.
Conclusion
The case of Jennifer Lopez underscores the complex interplay between copyright and privacy in the digital age. While data protection laws (GDPR, Act 843, among others) empowers individuals with significant control over their personal data, it does not override intellectual property rights. Before sharing any image, even one depicting oneself, it’s crucial to consider not only privacy implications but also the underlying copyright ownership. Understanding these distinct legal frameworks is essential for navigating the increasingly intricate landscape of digital content and personal rights.
