Paparazzo photos: copyright protected works or an intrusion into the celebrity’s private life?
To get photos of celebrities, paparazzi photographers wait for their targets to end up in the frame. They believe that the minute they released the shutter, the pictures are copyright protected. They don’t know that they might (un)knowingly or (un)intentionally breach someone’s right to privacy.
When does copyright protect a photograph taken by a paparazzo in the EU?
According to the case law of the Court of Justice of the European Union (CJEU) (Funke Medien specifically), the mere clicking of a button to take a picture may not be sufficient to trigger copyright protection. The CJEU set two cumulatively conditions that must be satisfied for a subject matter to be ‘original’, hence regarded as a ‘work’:
- it must be original in the sense that it is its ‘author’s own intellectual creation’ and;
- it must reflect the author’s personality (‘personal touch’) which is the result of ‘free and creative choices’ Funke Medien (para. 19) where the court refer to its ruling in Painer (para. 87 to 89).
In Painer (para. 91), the CJEU accepts that an author can make ‘free and creative choices’ at different stages of the production of a photograph: “[I]n the preparation phase, the photographer can choose the background, the subject’s pose, and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view, and the atmosphere created.”
For a photograph to meet the ‘originality’ criterion and be regarded as a ‘work’, the photographer must employ some creativity in the shot, for example, by staging the scene. In the case of a paparazzo photograph, it is more a matter of waiting, luck and circumstances than the photographer making creative choices as to when a target will show up and how she will pose or dress.
In view of the above, it is, therefore, doubtful whether the CJEU would find copyright to exist in a paparazzo photograph.
Can a target of a paparazzi photographer rely on a violation of her or his privacy?
Article 8 of the European Convention on Human Rights guarantees that every individual has the ‘right to respect’ for their private and family life to be respected. Private life is a broad concept, unfit for an exhaustive definition, (Niemietz para. 29), and extends to multiple aspects of the person’s physical and social identity, (S. and Marper para. 66).
In the case of Von Hannover v. Germany before the European Court of Human Rights (ECtHR), the court decided that there had been a violation of Article 8 of the Convention for publication of photographs of Princess Caroline von Hannover, who is considered a contemporary public figure. The object of this case were pictures of the Princess’ daily life, shot by a paparazzi, which depicted her in situations other than her performing her official duties. They were published by various German magazines. In light of this case, targets of paparazzi, who tend to portray publicly known people, such as celebrities, can potentially control the use of their photos taken by the paparazzo or refuse publication thereof if they can demonstrate that the paparazzo violated their privacy by taking photos of them in their private life without their prior consent (Bărbulescu para. 71).
Furthermore, the General Data Protection Regulation (GDPR) provides for some principles applicable to photographs of individuals, particularly where it is possible to identify the person in the picture, or where the picture is capable of disclosing other personal data Article 4(1). The processing of personal data under Article 4(2) GDPR covers a wide range of operations performed by manual or automated means. It includes, taking a photograph of an individual then publishing it and naming the individual in the publications. It is worth mentioning that there is nothing under the GDPR prohibiting people from taking photos in a public place, but it is what people do with that photo afterwards that can become problematic under the data protection rules: Where a paparazzo is using or making available of a target’s photograph or profiling that target for the purpose of marketing something, the target may rely on the ‘right to object’ under Article 21(2) GDPR. Targets can request the paparazzi to stop using or making available their photograph. In case of direct marketing, unlike other cases, the right to object is absolute. That means there are no exemptions or grounds for the paparazzi to refuse that request Article 21(3).
There remains some uncertainty in relation to copyright protection for typical paparazzi pictures, capturing a celebrity in a scene of everyday life (i.e. unstaged paparazzi work). This is because the originality threshold may not be satisfied. Regarding EU laws concerning privacy, a target may object to a paparazzo making available the picture in certain circumstances.
| Written by Suyada Kemthong (LL.M. IPKM Student 2019/2020)
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