Image as a personal good protected by law and its commercialisation

The image is included in the list of personal rights set out in the Civil Code, which are protected under Articles 23 and 24; however, the key provision is Article 81 of the Act on Copyright and Related Rights, which stipulates that the dissemination of an image requires the consent of the person depicted therein. In the absence of an express reservation, consent is not required if the person has received the agreed payment for posing.

There are no specific requirements as to the form of the consent given, but it must be expressed in a manner that is unambiguous and precise, i.e. the person giving consent must be aware of the place, time and nature of its publication.

The Act on Copyright and Related Rights provides for two situations in which consent to the dissemination of an image is not required:

• the dissemination of the image of a person who is merely a detail of a whole, such as a gathering, a landscape or a public event,
• the dissemination of the image of a person in the public eye, provided the image was taken in connection with the performance of their public functions, in particular political, social or professional functions

Commercialisation of the image

The commercialisation of the right to one’s image is relevant only in cases involving a person of public renown. The Supreme Court stated in one of its rulings that the term ‘person of public renown’ refers to a person who, either explicitly or implicitly, consents to the disclosure of information about their life to the public.

Public figures usually earn a great deal of money by commercialising their image. Examples include celebrities who are the faces of cosmetics ranges, or sportspeople entering into sponsorship contracts, for example with well-known drinks brands. It is therefore obvious that they do not want another person to benefit from this without their consent. The image is made available on the basis of contracts, so sponsors also have an interest in ensuring that other people do not use the image to which they have acquired the rights for their own purposes (especially in the case of an exclusive contract).

To be able to use a person’s image for commercial purposes, one must therefore obtain their consent to use the image and acquire the copyright or a licence for the photographs.

A person whose personal rights have been infringed may avail themselves of the protection provided for in Articles 23 and 24 of the Civil Code and Article 78(1) of the Act on Copyright and Related Rights and demand:

• an end to the infringement of their image,
• the removal of the effects of the infringement of their image, in particular by making a public statement of appropriate content and form,
• compensation for the harm suffered,
• payment of a sum of money for a specified charitable purpose,
• compensation for the financial loss suffered,

It is also worth remembering that, in the context of image protection, the protection of personal data is also at stake. A published image often allows for the identification of a specific person; it may therefore constitute personal data, and its dissemination requires consent to the processing of personal data in accordance with the requirements of the GDPR.

There is a dispute in legal doctrine and case law as to whether an image can be treated as a personal right of a legal person.

For example, the Court of Appeal in Warsaw issued a judgment on 20 October 2014, I ACa 456/14, in which it stated that ‘With regard to the personal right of image, the Regional Court correctly pointed out that a legal person is not entitled to it. Although Article 43 of the Civil Code requires the provisions on personal rights to be applied to legal persons as well, these provisions should not be applied literally, but rather by analogy, taking into account the nature of the specific personal right, as well as the differences between organisational units and natural persons. … the specific nature of the personal right that is the image implies that protection is granted exclusively to natural persons, and not to legal persons.”

In turn, the Court of Appeal in Białystok, in its judgment of 22 January 2014, I ACa 666/13, ruled that “The catalogue of personal rights of a legal person protected by law includes the image of the entity in question and the broadly understood freedom to conduct business within a chosen industry or profession. The image of a legal person is linked to its good name and directly affects such categories as reputation and the perception of the entrepreneur by other participants in economic and legal transactions. Unlawful actions restricting a legal person’s access to a certain market segment infringe the right to unrestricted economic activity.”

If we view an image as the likeness of a specific natural person, it is clear that we cannot attribute the right to such an image to a legal person; however, by extending this concept to a company’s reputation, the second of the views cited above appears to be valid.

Author

Zuzanna Bokina-Kielbasa

Radca prawny, Managing Associate

Specializes in corporate services for business entities and personal data protection. Assists the firm's clients in the preparation of all corporate documentation, including the registration of commercial companies and the further registration of changes, and provides ongoing and comprehensive advice on business. Provides advice in carrying out transformation processes of commercial companies, including transformations and mergers. Prepares and gives opinions on contracts, regulations and current documentation…

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