Image and copyright - how is our image protected?


The image, simply put, is the fixation of the image of a person in the way that the person is perceived, which leads to the fact that he can be recognized. So we will deal with the image of a given person when we take a picture of him, paint his picture or make a film with him. How can the image be protected? Is a written image also protected?

What is an image?

It is worth emphasizing that an image is not only the external appearance of a person fixed in some form. These will also be its characteristic features, e.g. a specific way of moving, speaking, gesturing, and even the way of combing or dressing. Moreover, by the phrase "perception of a person" should also be understood the very image of that person. A good example of this will be the so-called a written image that is most often found in literature (eg in the case of fictional novels where the protagonist is an authentic character, eg Napoleon). Another example of this would be when you write about someone on the internet (for example, post a story about a friend on your blog).

A stationery image, such as an image in a physical form, the form of an image, it does not always have to be true (a literary can be distorted if someone disseminates false information about a person on a website, causing third parties to have a false image of that person, while the image in a physical form may be false if someone changes someone's photo in Photoshop and distributes it). The image is very often associated with fame and reputation (e.g. in the case of actors, politicians), therefore even impersonating someone famous, using his known name, may be considered a violation of the right to image.

Image and copyright - general remarks

The right to image protection is guaranteed not only by the Copyright and Related Rights Act, but also by the Civil Code and the Personal Data Protection Act.

Pursuant to the Civil Code, the image is treated as a personal good of a human being (Article 23 of the Civil Code) and its protection may be pursued on the principles set out in Art. 24 of the Civil Code On the other hand, on the basis of the Act on the Protection of Personal Data, image is protected, because on its basis it is possible to identify a person (Article 6 of the Act on the Protection of Personal Data) - it is therefore personal data and its unlawful processing may result in liability (Article 8 and 23 of the Act).

The question of recognizing a person is very important. Therefore, if the image of a person is preserved, but its characteristic features that would lead to identification are not visible, there will be no question of protecting the image (similarly in the case of a stationery image - if the description of a given person does not allow for identification, we will not be dealing with with a stationery image).

Image and copyright

In the Civil Code, we deal with the general protection of the image, treated as a personal good. The Personal Data Protection Act focuses on protection against unlawful image processing as a personal data. The image is also protected under the provisions of the Copyright Act, in which the legislator focuses on defining the rules for disseminating the image:

Art. 81. 1. Disseminating an image requires the consent of the person depicted in it. In the absence of an express reservation, an authorization is not required if the person has received the agreed payment for posing.

2. The permission is not required for the dissemination of the image:

1) a person commonly known, if the image was made in connection with the performance of public functions, in particular political, social and professional;

2) a person who is only a detail of a whole such as an assembly, landscape, public event.

From the above recipe, the following conclusions can be drawn:

  1. you cannot distribute someone else's image without the consent of the person depicted in it,

  2. it can be disseminated if the person presented has consented to it,

  3. it can be disseminated if the person presented has received remuneration for posing - then there is no need to apply for a permit, as it is not required by the provisions of the act,

  4. it cannot be disseminated if the person presented has received remuneration for posing, but has explicitly stated that he or she does not consent to the dissemination,

  5. an image of a well-known person may be disseminated without permission, if it was made in connection with the performance of public (political, social, professional) functions,

  6. it may not be disseminated without permission if the image of a well-known person was made in a private situation, unrelated to its public function,

  7. it can be disseminated if the image of a person is only a detail of the whole (assembly, landscape, public event) - e.g. this person is visible in the background.

Image and copyright - consent to disseminate the image

Consent is a basic condition that must be met if we want to disseminate someone's image. Consent may not be implicit, it may be given in any way, but it must be unambiguous and in the future, in the event of a dispute, easy to prove - so it is best to include it in writing.

By agreeing to the dissemination of the image, the person concerned should be aware of the extent to which their image will be used - the consent should include information on this subject (e.g. consent for publishing photos on the Internet on a specific website - so it will be illegal to publish these photos in a traditional newspaper).

It should be remembered that even if someone does not object to taking a picture of him or painting a picture, it cannot be presumed that he also agrees to the publication (or other form of dissemination) of his image. So any posting of photos on Facebook (e.g. from a party) on Facebook is illegal, unless we have consented to it. Of course, in practice, most often no one enforces their rights, but it should be emphasized that everyone has the right to request the removal of such a photo, and if the request is not met - pursue their claims in court.

The only exception, when consent may be implied, is the situation presented in Art. 81 sec. 1 - the posing person received payment for posing. This provision clearly indicates that it is not necessary then to apply for permission to use the image. However, if the posing person has clearly indicated that he or she does not wish to disseminate his image, this image cannot be used in any way ("It cannot be argued that posing, or even selecting photos, implies the photographer's obvious and unconditional consent to all forms of dissemination", judgment of the Court of Appeal in Warsaw of October 10, 2008, I ACa 494/2008).

Image and copyright - a well-known person and a person who is a detail of the whole

The legislator allows the use of an image of a well-known person, if the image was made in connection with the performance of public functions by that person. This means that we can distribute a photo taken of a politician attending the Sejm sessions or a public speaker at a press conference, but we are not entitled to use his image recorded when he walked with his wife in the park. Similarly, we can take a photo of an actor on the set or premiere of a movie, but we are not allowed to distribute a photo taken of him while he was having dinner with friends in a restaurant. In the situations described above, we have a clear division into activities performed in connection with the performance of public functions and those performed privately. Public persons, like all people, have the right to privacy, but taking pictures of them in private situations and then disseminating them is a violation of this privacy.

However, what if we use the image of a famous person, recorded in connection with the performance of public functions in an advertisement we have created? Such action will be illegal if it leads to infringement of the personal rights of that person. For example, the image of a famous actor will be used to promote a product. Even if the image could be used because it was preserved in the situation of performing public functions by that person, however, if there is an infringement of personal rights (the image was used to promote a product with which the known person does not want to have anything to do with), the use of the image without consent will be illegal.

The consent of the legislator to disseminate the image of persons who constitute only a detail of the whole is primarily intended to facilitate information, reporting and documentation activities, e.g. by presenting public events. Everyone has the right to share a photo from a large event (e.g. a concert) or vacation, where he took photos against the background of monuments, and random people were in the frame - then the consent of these people is not required, they are only a detail of the photo. It should be emphasized, however, that without the consent of the person presented to him or her, a cropped image (i.e. an image "cut" from a larger whole, appropriately cropped in such a way that the viewer's attention is focused only on that one person) or an image that is an element of a larger whole (e.g. a photo from a party), but which was clearly created in violation of the right to privacy (e.g. landscape photography, in which an image of a person in a private situation was captured - e.g. in the backyard of their own home).

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Image and copyright - how to defend yourself?

What to do if our image right has been violated? We can defend ourselves - both under the Copyright Act, as well as under the Civil Code and the Personal Data Protection Act.

In the case of the Copyright Act, the following protection measures are provided for (Article 78 (1)):

  1. request to refrain from acting - this means that if we learn that our image has been disseminated without our consent, we can first of all require the responsible person to cease this action, i.e. remove our photo,

  2. request to remove the effects of the infringement - if the dissemination of our image has led to further damage, we may demand that the responsible person remove the effects of his action, e.g. if he has placed our photo on the Internet and it has been disseminated further, we may request that this person remove the photos from other parties or publicly apologized for her actions. If the action of that person was culpable, the court may award the aggrieved party an appropriate sum of money as compensation for the harm suffered, or oblige the perpetrator to pay an appropriate sum of money for the social purpose indicated by the aggrieved party.

Under the Civil Code, we can demand compensation, because infringement of the right to image is a violation of personal rights, so the perpetrator may be held liable. Therefore, it is possible to demand compensation from him (in the case of non-pecuniary damage, such as pain, suffering, experience of shame), or compensation (in the case of pecuniary damage - if, for example, we have lost earnings due to the spread of our image). It is worth emphasizing that the aforementioned written image can only be protected on the basis of the provisions of the Civil Code, because a false representation of someone's image in writing is in fact a violation of personal rights (image, honor, good name, etc.). It follows from the above that no one can be forbidden to disseminate real information (so if someone disseminates real information about us on the Internet, truthful and truthful, there will be no infringement of personal rights).

Your rights regarding the image and its processing may also be claimed under the Personal Data Protection Act, provided that the image meets the conditions for being considered personal (Article 18 of the Act).