Copyright law, case I CK 232/04

July 11th, 2005, Tomasz Rychlicki

According to the judgement of the Polish Supreme Court of 23 November 2004 case file I CK 232/2004, it is possible to quote another’s work even in its entirety, if for the purposes described in Article 29 of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

Article 29
1. It shall be permissible to reproduce in the form of quotations, in works that constitute an integral whole, fragments of disclosed works or the entire contents of short works to the extent justified by explanation, critical analysis or teaching or by the laws of the creative genre concerned.

It is permissible so long as the quotation remains in such a proportion to the personal creative input of the author incorporating it, so as to eliminate any doubts as to whether a new, individual work has been created. Under the said article one can quote a fragment of or an entire work of others already made public by referencing or reproducing such fragment/work and using it in one’s own work within the scope justified by explanation, critical analysis, teaching or the rights governing a given kind of creative activity. If these requirements are met the quotations are allowed without the author’s authorization.

On 26 April 2001, the District Court in Warsaw held in favor of the claimant Tomasz Sarnecki who filed a lawsuit against the weekly magazine “Polityka”, the Labor Cooperative in Warszawa and the editor in chief Jerzy B. for copyright infringement. The Court found the respondents liable (jointly and severally) to a fine of PLN 5.000 as a compensation for the willful infringement of the author’s moral rights, a fine of PLN 15,000 as a compensation for the author’s economic rights and obliged them to publish in their magazine a press declaration communicating to the public the fact that the claimant’s work was used without his permission.

On the cover of its 5 June 1999 issue, the “Polityka” magazine published a substantial fragment of the famous Solidarity Citizens’ Committee election poster from June 1989, authored by Tomasz Sarnecki. The poster, titled “High Noon, June 4, 1989” pictured a sheriff holding a paper sheet with the word “Election”, and a characteristic “Solidarność” logo pinned to his chest right above the sheriff’s star. It is worth to mention that the image of sheriff was taken from the movie “High noon” and depicted Gary Cooper. The “Polityka” magazine cover incorporated that very same poster, save for minor modifications. In particular, the respondent left out the word “Solidarność” placed above the head of the sheriff as well as the poster’s title (“High Noon, June 4, 1989”) replacing it with the wording “10 years of freedom. The history of the III Republic of Poland. Special report”. The cover referred to an article published in that issue of the magazine, commemorating the 10th anniversary of the first free democratic election in Poland. However, the editor’s office used the poster without it’s author’s knowledge or permission, not bothering even to indicate his authorship or to pay him any remuneration. This of course led to the author to file a suit in the court.

The court of first instance found, based on an expert’s opinion, that the cover of the “Polityka” magazine cannot be classified as an independent work inspired by the poster, because it incorporates the poster directly, using 90% of its plastic form without any – even the slightest – modifications. The designer of the cover did not modify the poster in any way and maintained the substance of the claimant’s work, hence infringing the latter’s moral right to sign the work with his name or pseudonym and his economic right to use the work, to dispose of it and to receive remuneration for the use of that work. Additionally, such infringement was willful, as the respondents did not exercise due professional care in identifying the author of the poster. The court found that Article 29 of the ARNR could not apply in the case at hand because the respondents’ behavior had exceeded the scope of fair use, as described in Article 34 of the ARNR.

Article 34
It shall be lawful to make use of works within the recognized limits of use on condition that the creator and the source are expressly mentioned. Their creator shall not be entitled to remuneration unless the law provides otherwise.

The above reasoning was subsequently adhered to by the Court of Appeals in Warsaw, which dismissed the respondents’ appeal on 18 September 2003. The court stated that the scope of quotation incorporated in the respondents’ work was so substantial that it was impossible to treat it as a permissible borrowing of a “snippet” of someone else’s work, as understood by article 29 of the ARNR and emphasized that the respondents did not even attempt to change the “atmosphere” of the poster in any way. The court found also that the fact that the poster was politically propagandist in nature was irrelevant and underlined that the commercial character of the use of it was illegal.

The respondents therefore filed a cassation claim with the Supreme Court, based in particular on an improper interpretation of the provisions of the ARNR. Amongst others, the respondents accused the Court of Appeals of having misinterpreted 1) Article 29 by wrongly assuming that it applies solely to cases where only a fragment of another’s work (as opposed to a whole work) is borrowed; 2) Article 29(1) in conjunction with Article 35, by wrongly assuming that for the purposes of setting the limits of fair use, the politically propagandist nature of the work is irrelevant and by disregarding the elements of this genre; 3) Articles 16(2), Article 34 and Article 78(1) – by wrongly applying those provisions and wrongly assuming, that the author’s moral rights had been infringed by not indicating the author’s personal information on the cover; 4) Article 17 and Article 79(1) by wrongly applying those articles and by wrongly assuming that the respondents infringed the author’s economic rights and 5) Articles 34 and 29(1) and (3) by not having applied those articles and by wrongly assuming that the claimant therefore has the right to remuneration. In conclusion the respondents requested that the sentence be changed and the lawsuit dismissed or alternatively that it be reversed and remanded.

Article 35
Lawful use shall not be prejudicial to the normal exploitation of the work or to the legitimate interests of the creator.

In turn, the Supreme Court upheld the Court of Appeals judgment. In particular it disagreed with the respondents’ opinion that the cover of their magazine constituted an independent work, inspired by another’s creative activity and incorporating that another’s work in the form of a quotation, as permitted under the fair use doctrine, rooted in the ARNR. The SC stated that a cover of a magazine can indeed constitute a work (be it an entirely independent one or inspired by someone else’s creative activity), but only on condition that such work, even though incorporating quotations, is primarily a result of one’s own intellectual efforts. In the Court’s opinion the cover of the “Polityka” magazine of 5 June 1999 could not constitute an independent creative work (resulting from the respondents’ own intellectual efforts) and incorporating a permissible quotation. The cover incorporated over 90% of the claimant’s work without any modifications, save for removing some of the subtitles and inserting others (such as the issue’s special report’s title). The respondents raised that their incorporation constituted a permissible quotation, justified by the rules governing this kind of creative activity. They also pointed out that the scope of the incorporation (90%) did not amount to an infringement of the author’s rights, since Article 29(1) explicitly allows to quote in works constituting an independent whole, not only fragments of disseminated works but also minor works in their entirety. According to the SC, incorporating such a vast majority of elements of the claimant’s poster could under no circumstances be qualified as a mere borrowing of snippets of the claimant’s work, because it is not the size of the quoted work but the purpose of the quotation coupled with the relation between the work and the quotation that it incorporates, that is of importance under Article 29. The Court stated that in certain justified cases it is permissible to quote even the entire work; however this is so only for as long as the quotation is incorporated for the purposes of explanation, critical analysis and teaching or is justified by the rules governing a given type of creative activity (genre). In any event, the quoted fragment (or even an entire work) must remain to one’s own intellectual input in such a proportion, so as to eliminate any doubts as to whether an independent work was created. And although there are no strictly defined rules describing the exact size of the permissible quotation, the Court held that by its nature, the quotation must be subordinate vis-à-vis the work that incorporates it. However, the issue of whether a particular quotation is permissible based on its size and scope will have to be analyzed on a case by case basis. In the case at hand, the Court found that the respondents’ own input into the cover was very limited and consisted of removing the subtitles (10% of the poster), minimizing the picture, and replacing the original slogan with the special report’s title. It is therefore impossible to justify the respondents’ theory that such “input” led to the creation of an entirely new and wholly independent work, merely inspired by the claimant’s poster.

The Supreme Court has also rejected the respondent’s allegation, that the use of the complainant’s work was justified by the rules of that particular genre (political propaganda). The respondents claimed that the cover of a magazine may consist of various graphic elements constituting pastiche, caricature or collage. And although the Court agreed with that statement, it nonetheless stressed that whenever speaking of a quotation of an artistic work (commonly used in pastiche, caricature and collage techniques), one must remember that all of the works so created must change the substance and the meaning of the work incorporated in them, so as to demonstrate their own view of the issues touched upon in the original work and not amount to a mere copycatting. Only then, will the permission of the author be unnecessary. Since the respondents’ cover did not meet those requirements, their reliance on Article 29(1) was unfounded and the use of the poster constituted a copyright infringement.

The Court also noted that even if the respondents were entitled to quote the entire work, without the author’s permission (as per Article 34) they were still under the duty to identify the author and the source of the work quoted, irrespective of whether such work was commonly recognized or not. Placing the author’s name and the source of the work quoted is a “conditio iuris” applicable to all works, not only those created by obscure authors but also to those whose authors are famous and widely recognized. The respondents’ excuse, that it was impossible to identify the author of the poster because he published his work anonymously also failed. The SC stated that it is the author’s moral right to publish his work anonymously, and if he chooses to do so this does not mean he authorizes others to claim authorship of that work. If it was indeed impossible to identify the author of the work, the respondents’ could have always placed information that the quotation comes from an anonymous author, and hence avail themselves of article 34 exception. The Courts has also stressed that the respondents had entirely disregarded the existence of article 8(3), which lists the entities authorized to represent authors who cannot be identified because they wished to remain anonymous3. The Court has also rejected the respondents’ argument, that the politically propagandist nature of the poster deprived it of the protection granted by the ARNR, since there is no such provision to this effect under the said Act. The Court added also, that the fact that the poster was a political propaganda, destined to be used as a source of pastiche, collage or caricature does not mean that its author cannot claim remuneration for such use (pursuant to proper licensing agreements).

Bearing in mind all of the above, the Supreme Court held, that both the court of I instance and the court of appeal rightly found the respondents liable for the infringement of the claimant’s moral and economic author’s rights and that the latter did indeed deserve the protection of the ARNR. Therefore, the Supreme Court upheld the lower courts’ decisions and ruled that it is possible to quote another’s work (even in its entirety) only if made for the purposes described in Article 29 of the ARNR and so long as the quotation remains in such a proportion to the personal creative input of the author incorporating it, so as to eliminate any doubts as to whether a new, individual work was created.

The case unequivocally sets the limits of a permissible quotation, interpreting the law very strictly and leaving no place for maneuver for those who want to free ride on other’s creativity under the veil of freedom of press and information. It also raises the standard of due care for professionals, such as magazines, who now need to exercise the highest level of due care when referencing or reproducing works of others.

See also “Polish regulations on copyright” and “Polish case law on copyright“.