Photographer’s Copyright And Data Subject’s Right: Balancing The Entangle Rights

By Abdulbari Adam Abubakar, Esq

1.0 INTRODUCTION

Photography is becoming very crucial to our daily lives, it is almost impossible for a person at some point in his life not to require the services of photographer. If not, he would have witness another person close to him that requires the services of a photographer. It gain so much prominence in recent years that almost everyone needs a phone with an outstanding camera effect. This made it widely of note that, photos are taken almost every day for different reasons. Hence, it is important to know the meaning of photography.

Simply put, photography is the art of producing images, or the process of taking pictures with a camera. A more advance meaning of photography as put by Merriam Webster Dictionary is “the art or process of producing images by the action of radiant energy and especially light on a sensitive surface (such as film or optical sensor)”.[1]

The prominence photography gained in recent years, present it with commercial recognition; it gave it an important drive to achieve success in commercial activity. It became an important element of so many businesses. “Photography itself fuels industrious digital photography platforms as diverse as Instagram, Pinterest, Flickr, and Getty”.[2] This however, made it expedient to be protected by the law. And for that to be done, it is equally important to determine the ownership of the photograph. The important question is who is the owner of the photograph? Is it the photographer or the Data Subject (the person whose picture is taken)?

To properly answer this question, it is pertinent to have an insight of who a Data Subject is; as define by the EU General Data Protection Regulation (GDPR), a Data Subject is an “identified or identifiable natural person or persons.”[3] Simply put, data subject is an individual/person whose information is collated in relation to a business operation. While personal data under the GDPR means any information relating to an identified or identifiable natural person (“data subject”)[4] in other words, any information that might be used to identify a person.

Nigeria Data Protection Regulation (NDPR) Defines a data subject as “any person who can be identified, directly or indirectly, by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural, or social identity.”[5]

The Information Commissioner’s Office (ICO) also defines a Data Subject as “the identified or identifiable living individual to whom personal data relates”.[6]

By recourse to the above definition of Personal Data under the GDPR, it can be deduced that personal data is anything that can be used to identify a person. The definition qualifies photographs as personal data and by implication; the provisions of data protection regulations (namely GDPR and NDPR for the purpose of this article) are applicable on photographs.

DATA PROTECTION REGULATIONS (GDPR & NDPR)

The continuous evolution of technological advancements and the evidenced universal change of manual to digital processes,[7] necessitate the need to regulate personal data. Hence, the release of GDPR in 2018 by the European Union to regulate the Data usage, provide for its protection and deals with its violations.

By 2019, Nigeria followed the foot step of European Union by issuing a subsidiary regulation on data protection which is the Nigeria Data Protection Regulations (2019), it was issued by National Information and Technology Development Agency (NITDA) pursuant to its statutory powers as laid down in the NITDA Act (2017).

The key features of the regulation for the purpose of this Article are:

1. Data Subject’s Right,
2. Conditions for the determination of lawful processing of personal data.

The rights of the Data Subject include:-

1. Right to object: data Subjects has the right to object the processing of their personal data for marketing purposes. In other words, they can refuse to grant permission for the processing of their data;[8]
2. Right to access: data subjects has right to access of their personal data and can request for same transferred where feasible;[9]
3. Right to portability: they have the right obtain information about processing of the personal data;[10]
4. Right to be forgotten: data subjects can request for their personal data to be deleted or erased;[11]
5. Right to rectification: they can request for their information to be corrected where it is inaccurately or wrongly recorded;[12] and
6. Right to restrict processing: data subjects have right to obtain from the controller restriction of processing their personal data.[13]

Conditions for the determination of lawful processing of personal data:-[14]

1. Consent of the data subject;
2. For the performance of a contract;
3. For the compliance of a legal obligation;
4. To protect the vital interest of the data subject; and
5. For the performance of a task carried out in the public interest.

The provisions for Data subject’s right and lawful processing of personal data under both the GDPR and NDPR are somewhat identical with little addition on part of the GDPR where it provided that “processing is necessary for the purpose of legitimate interest pursued by the controller or a third party, except where such interests are overridden by the interests, rights or freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”[15]

PHOTOGRAPER’S RIGHT UNDER THE COPYRIGHT ACT

The copyright Act of 1988 (cap C28 Laws of the Federation 2004) regulates issues relating to copyrights in Nigeria. The Act explicitly ceded ownership of photograph to the photographer who took the picture. Section 39 of the Act provides that “the author in the case of a photographic work, means the person who took the photograph.”

Section 9 of the Act goes further to cater for situations where the photographer took the photography under a commission or where not commissioned but the photography is made in the course of the photographer’s employment, the copyright still belong to the author (photographer) unless it is otherwise provided under a contractual agreement.

These provisions received judicial blessing in the case of BANIRE V. NTA-STAR TV NETWORK LTD[16], it is was held in the case that “…it is the act of Virtual Media Network being the ones who took the photographs that makes it the author of the photograph. By taking the photographs they automatically have rights except there is an agreement otherwise.”

There are other similar cases to that effect, e.g the case where Lebron James was sued by Photojournalist Steven Mitchell for unauthorized use of a picture; he captured Lebron James dunking during a game. Lebron posted the picture to his social media and was sued for so doing. Although, he counter sue and argued a case of fair usage, his claim was countered and argued that “james’ social media profile carry a lot of value and are commercialized quite often in conjunction with his off-court deals.”[17] Fair Usage under the US copyright law is established “when the use of a copyrighted work is intended for the purpose of such as criticism, news reporting, teaching, and research even if it was sued without permission.”[18]

Another example is when the photographer under the Paparazzi agency “Xclusive-Lee” sued Gigi Hadid for posting a photo he took of her on instagram without the consent of the photographer.[19]

It is important to also note that copyright authors are afforded with economic and moral rights; such rights are “exclusive” and “absolute.”[20]  While, economic right can be transferred to another person by way of contractual agreement, e.g, by way of licensing, moral right cannot be transferred contractually.

STRIKING BALANCE BETWEEN PHOTOGRAPHER’S COPYRIGHT & DATA SUBJECT’S RIGHT

There exist some conflicts between copyright and other rights which personal data right is part of. Hence, for the benefit of this article our focus will be on photographer’s copyright and data subject’s right.

There is currently no explicit provision of the law that offers profound solution to the conflict between data protection regulation and copyright, it also largely remains to be seen whether any legislation will be passed to add simplification.[21] However, there is an attempt by the Directive 95/46/EC and the Greek Law 2472/1997,[22] although predate both GDPR and NDPR to reconcile the clashes between photographers copyright and data subjects, and some of the instances considered are discussed below.

For a photo of a person to be lawfully publicised, there must be an expression of consent by the data subject, and such consent might be “tacit”, for example, where remuneration is involved. Failure to obtained consent by the photographer will denied him the exercise of the economic right that might be derived from the photo.[23]

However, there are instances where consent need not to be sought, that is where the data subject is a public figure and the “photo is taken in a public space during a public activity or event.”[24]

That been said, it is clear that consent need not to be sought if the data subject is a public figure such as politician, social media personality, celebrity or business leader, provided that the activity or event has no relation to their private lives, unless if such event is interrelated with the data subject’s (public figure) “capacity or profession.”[25]

Article 9(7) of the Greek Law N. 2557/1997 provide an exception specifically where an athlete is involved, to the extent that written consent or consent of the trade/professional union where such athlete belongs must be sought if the purpose for the photograph is for commercial or advert use.[26]

Another interesting move by the Greeks in their quest to balance copyright with the right of personal data protection in photographs can be seen in the case dealt by Greek Data Protection Authority.[27] The prominent question addressed by the “authority” is “whether professional photographers are entitled to keep the “photographic negative” of picture they take, as well as display them on the window of their shops without consent of the depicted persons?”[28] In consideration of the copyright protection that photographers’ original photos enjoy, the Authority concluded that the photographers have the right to keep such works in their file. The Authority further added that, despite the fact that the data subject is denied the right to request for the photographic negative unless where agreed by both parties, the data data subject can contest any use of the photographs that encroaches on their right to protect their image.[29] It clear from the reconciliation above that, “even if the photographer has transferred the economic copyright, it will still not be possible to use the photograph without the depicted person’s consent.”[30] Such reconciliation does not really favour the photographer.

Another instance where precedence was given to the data subjects in reconciliation of copyright with data protection is “where one’s personal data have been photographed without any kind of authorisation and form the main theme of a picture.[31] This is with regards to the situation where the data subject is not a public figure.

In spite of the above, it is currently also strongly advised for photographers to adopt the following in the course of their professional engagements:

1. Consent: It is advisable for the photographer to obtain a clear consent from his client,[32] the consent must be explicitly and clearly depicting the purpose for which the photographer want to use to photo.
2. Contract: Another important aspect to be considered by photographers in the course of their professional work is contract; it needs to match the requirements provided in the various data protection law depending on their location. Photographers need to consider the use of digital contract; such contracts are “encrypted”, and can be filed on your “encrypted cloud platform.”[33] There is also the need to add “consent/permission clause”.[34] Furthermore, such contract need to clearly request for permission to use the photos on any “channel, including exhibitions or contests”[35] to avoid data privacy infringement.
3. Sharing where applicable: as a photographer, data subjects have the right to request their image to be shared to them, if it happens you have no option but to comply with their request depending on the underlying agreement between you.
4. Deletion: data subjects have the right to request that their images be deleted, hopefully it won’t reach that. But it if does, the photography has no other but the effect their request. This also depends on the underlying agreement between them.

CONCLUSION

It is clear that a photographer is inherently entitled to copyright of a picture taken by him, whether he commissioned to or not depending on the agreement between the photographer/author and the data subject. It is also clear from the foregoing that, this is not absolute as there exist conflict between copyright and other rights arising in cases of photographs portraying person.

In spite of the fact that, there are no clear legislations providing solution to the conflict here in Nigeria and several other jurisdictions, countries like Greece and England made an attempt to reconcile such conflict. Although the attempts predates the GDPR/NDPR, can still be useful in Nigeria.

It was also stated earlier that, in the cases of commission photography, the author always get the ownership of copyright as the creator/author of the work. This in turn afforded the author the right to use the “photographic negative” as he pleases, without the commissioner’s/data subject’s consent. At this juncture, it is worth making reference to a specific provision of the British Copyright, Designs and Patents Act 1988 concerning the data subject’s right to privacy in cases of commission photography. Section 85 of the Act provides, “a right to privacy is granted to the commissioner empowering him/her not to allow copies of the contested photo to be issued and exhibited to the public or be included in a broadcast, provided that two requirements are met: the picture qualifies for copyright protection and has been commissioned for private and domestic purposes only.”[36]

It is however also advisable that, photographers in the course of their professional engagements to adopt the lawful means of processing data such as seeking for consent from the data and entering contractual agreement, among others to avoid possible data infringement.

[1] Merriam Webster Dictionary.

[2] Eleni Karatza, Copyright Protection for Photographs, (Jan, 2016) < https://www.google.com/url?sa=t&source=web&rct=j&url=https://repository.ihu.edu.gr/xmlui/bitstream/handle/11544/14505/e.karatza_ale_26-01-2016.pdf%3Fsequence%3D1&ved=2ahUKEwj5tf6u4cr3AhV5g_0HHaGYDSwQFnoECA4QAQ&usg=AOvVaw2d5cIFZZDCbq1Gq5ZToPn1> accessed 22 April, 2022.

[3] Article 4(1), GDPR.

[4] Ibid (n3).

[5] Article 1.3 (xiv), NDPR.

[6] ICO, Legal Definitions https://ico.org.uk/for-organisations/data-protection-fee/legal-definitions-fees/#:~:text=compliance%20with%20them.-,Data%20subject,to%20whom%20personal%20data%20relates accessed 30 March, 2022.

[7]

[8] Art. 2.8. NDPR.

[9] Art. 3.1. (1) NDPR.

[10] Art. 3.1. (7) NDPR.

[11] Art. 3.1. (9) NDPR.

[12] Art. 3.1. (8) NDPR.

[13] Art. 3.1. (11) NDPR.

[14] Art. 2.2.(a – e), NDPR.

[15] Art. 6. (1) (f). GDPR.

[16] (2021) LPELR-52824(CA).

[17] Libby Peterson, 6 Copyright Infringement Cases Photographers Should Know About, (January 27, 2021) http://www.rangefinderonline.com/news-features/business-marketing/copyright-infringement-cases-photo-photographers/ accessed on 3^rd May, 2022.

[18] Ibid.

[19] Ibid.

[20] Eleni Karatza (n 2).

[21] Y Shafer, Does the GDPR also Apply to Photographs and Films? (2 July, 2018) http://www.mondaq.com/germany/x/714306/data+protection/Does+The+GDPR+Also+Apply+To+Photographs+And+Films? accessed 3 May, 2022.

[22] Eleni Karatza (n 2).

[23] Ibid.

[24] M. Kanellopoulou-Boti, The Right of Personality and the right of Photography in I. Stamatoudi (ed.), Journalists and Mass Media Publishers: Copyright Law Issues, p.244.

[25] Eleni Karatza (n 2).

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Eleni Karatza (n 2).

[31] B. Markousi-Banti, The relation of data protection with copyright within the internet, Athens, Nomiki Vivliothiki Publications, 2012, p.198.

[32] No Author, GDPR for photographers. Will it affect you? (May 23) https://skylum.com/blog/what-is-gdpr-and-how-it-will-affect-you accessed 30th March 2022.

[33]Ibid, 12

[34] GDPR for photographers. Will it affect you? (n 26).

[35] Ibid.

[36] Eleni Karatza (n. 2).