Privacy law and intellectual property law are two distinct yet increasingly interconnected areas of U.S. law. While I.P. protects creative and innovative works, privacy law protects personal information and individual autonomy. Their intersection raises complex legal challenges, particularly in the digital age.
Privacy Law Framework
Constitutional Foundation
The U.S. Constitution doesn’t explicitly guarantee a right to privacy, but courts have recognized implicit privacy rights through several amendments. In Griswold v. Connecticut,1 the Supreme Court identified a constitutional right to privacy in the “penumbras” of the Bill of Rights. The Fourth Amendment protects against unreasonable searches and seizures, while the First Amendment protects associational privacy.
Federal Statutory Privacy Protections
Several federal statutes address specific privacy domains:
- Health Insurance Portability and Accountability Act (HIPAA) of 19962: regulates the use and disclosure of protected health information by covered entities and business associates.
- Children’s Online Privacy Protection Act (COPPA) of 19983: requires parental consent for collecting personal information from children under 13.
- Gramm-Leach-Bliley Act (GLBA) of 19994: governs financial institutions’ handling of consumer financial information.
- Electronic Communications Privacy Act (ECPA) of 19865: protects wire, oral, and electronic communications from interception and unauthorized access.
- Computer Fraud and Abuse Act (CFAA) of 19866: Addresses unauthorized computer access, though it’s primarily a computer security statute.
State Privacy Laws
States have increasingly enacted comprehensive privacy legislation. The California Consumer Privacy Act (CCPA) of 2018, strengthened by the California Privacy Rights Act (CPRA) (2020), provides California residents with rights including access, deletion, and opt-out of sale of personal information. Other states like Virginia, Colorado, Connecticut, and Utah have enacted similar comprehensive privacy laws.
Common Law Privacy Torts
Following William Prosser’s influential formulation, courts recognize four privacy torts: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness. The appropriation tort particularly intersects with IP concepts through the right of publicity.
Intellectual Property Framework
Copyright Law
Under the Copyright Act of 1976,7 the current copyright law, copyright protections protects original works of authorship fixed in tangible media. Key cases include Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,8 which established that copyright requires minimal creativity, and Google LLC v. Oracle America, Inc.,9 which addressed fair use in software contexts.
Patent Law
Title 35 of the U.S. Code governs patents for inventions. Recent patent-eligibility cases like Alice Corp. v. CLS Bank Int’l,10 have limited patents on abstract ideas, affecting software and business method patents.
Trademark Law
The Lanham Act11 protects marks identifying goods and services. Trademark law prevents consumer confusion and protects brand reputation.
Trade Secret Law
The Defend Trade Secrets Act (DTSA)12 of 2016 provides federal civil remedies for trade secret misappropriation, complementing state laws like the Uniform Trade Secrets Act (UTSA).
Key Intersections and Conflicts
Right of Publicity vs. First Amendment
The right of publicity, which prevents unauthorized commercial use of one’s name, image, or likeness, exists at the state level and intersects both privacy and IP law. Courts have attempted to balance this right against First Amendment protections. More recently, courts have grappled with cases involving unauthorized uses in video games, films, and other media.
Data Ownership and IP Protection
A central tension exists around whether personal data can be “owned” like property. While IP law protects compilations of data (under copyright) and databases (potentially as trade secrets), individuals generally cannot copyright their own personal information. Cases like Feist make clear that facts themselves are not copyrightable, raising questions about data rights.
Biometric Data and Patents
Biometric technologies create privacy concerns while also being subject to patent protection. State legislation has generated significant litigation, which state that technical violations create standing to sue. Meanwhile, companies patent biometric recognition technologies, creating tension between innovation incentives and privacy protection.
Anonymization and De-identification
HIPAA and other privacy laws permit use of de-identified data, but re-identification risks persist. Research databases and machine learning datasets raise questions about when de-identified information remains protected and whether aggregated data constitutes a protectable trade secret or copyrightable compilation.
Photography and Image Rights
Copyright law grants photographers rights in their images, while privacy law and right of publicity protect subjects. This creates complex scenarios: a photographer owns copyright in a photo, but the subject may have privacy or publicity rights limiting its use. Cases must balance these competing interests, particularly in commercial contexts.
Online Platforms and Section 230
Section 230 of the Communications Decency Act13 generally immunizes online platforms from liability for user-generated content, affecting both IP enforcement (through the Digital Millennium Copyright Act’s notice-and-takedown provisions) and privacy claims against platforms hosting privacy-violating content.
Trade Secrets vs. Privacy in Employment
Employers often require confidentiality agreements protecting trade secrets, but these can conflict with employees’ privacy interests in their own work and personal information. Non-compete agreements and restrictions on departing employees’ use of information must balance trade secret protection with individual rights.
Facial Recognition Technology
This technology implicates both privacy concerns and IP rights. Companies developing facial recognition systems hold patents and trade secrets, while their deployment raises significant privacy issues under state biometric privacy laws and Fourth Amendment jurisprudence in law enforcement contexts.
Emerging Issues
Artificial Intelligence and Machine Learning
AI systems trained on personal data create novel questions: Does training data constitute fair use? Can individuals control use of their data in AI training? Who owns AI-generated works? These questions span both privacy and IP domains.
Genetic Information
The Genetic Information Nondiscrimination Act (GINA) (2008) provides privacy protections, while questions persist about patenting genetic sequences after Association for Molecular Pathology v. Myriad Genetics, Inc. (2013), which held naturally occurring DNA sequences aren’t patentable.
The “Right to Be Forgotten”
While European law recognizes this right, U.S. courts have generally rejected it as conflicting with First Amendment protections, creating tensions between privacy interests and free expression.
Cryptocurrency and Blockchain
These technologies create transparency-privacy tensions while raising IP questions about protocols, smart contracts, and digital assets.
Conclusion
The relationship between privacy law and intellectual property in the U.S. remains complex and evolving. Both legal frameworks serve important but sometimes competing interests: privacy law protects individual autonomy and personal information, while IP law incentivizes creation and innovation. As technology advances—particularly in areas like AI, biometrics, and data analytics—courts and legislators continue balancing these interests, seeking frameworks that protect both individual rights and creative advancement. The lack of comprehensive federal privacy legislation in the U.S., unlike I.P.’s more unified federal framework, adds further complexity to navigating these intersections. For more information, please contact Yonaxis I.P. Law Group.
- 381 U.S. 479 (1965). ↩︎
- See 42 U.S. Code § 1320d-6. ↩︎
- See generally 15 U.S.C. §§ 6501-6506. ↩︎
- See 15 U.S.C. § 6801. ↩︎
- 18 U.S.C. §§ 2510-2523. ↩︎
- 18 U.S.C. § 1030. ↩︎
- 17 U.S.C. §§ 101-810. ↩︎
- 499 U.S. 340 (1991). ↩︎
- 593 U.S. 1 (2021). ↩︎
- 573 U.S. 208 (2014). ↩︎
- 15 U.S.C. § 1051 et seq. ↩︎
- 18 U.S.C. § 1836, et seq. ↩︎
- 47 U.S.C. § 230. ↩︎