Stan Borys is a Polish singer and author of the lyrics to the song “Chmurami zatańczy sen”, which was composed in 1974. A longer excerpt from the chorus “Ciemno juz zgasły wszstkie światła, ciemno już, noc nadchodzi głucha” has been used by Ryszard Andrzejwski, a Polish raper called PEJA as a sample in his song “Głucha noc” which was recorded in 2001 and released by his publisher T1-Teraz sp. z o.o. on two albums in 2001 and 2002. These albums were distributed by EMI Music Poland. The sampled part was transformed by changing the voice octave and by increasing the music tempo. The song became a hit that was aired in radio and television stations.
CT Creative Team S.A. sells multimedia content to mobile phones based on SMS and WAP technology using Premium Rate numbers. On 26 August 2003 the company entered a license agreement with T1-Teraz for distribiution of short fragments of songs recorded by PEJA. This also included 30 seconds of “Głucha noc”. These music pieces were uploaded to CT Creative MEdia server. CT was obliged to pay 0,15 PLN for each downloaded fragment, the payment followed within 14 days after the end of each calendar quarter. CT was also required to provide an additional statement containing the information on songs/fragments used together with the original titles, numbers of downloads and numbers of fees charged. A year later the two companies signed an similar agreement with a fee 0.,5 PLN per downloaded song. In the period from September 2003 to October 2005, this song has been downloaded 859 times as a phone ringtone and CT earned 3465 PLN.
Stan Borys found out about this song in 2004. To his surprise, he was informed at the press conference, held together with PEJA. Resentful of this situation, he explained that he did not consent to the use of his song by PEJA. His attorney requested the CT Creative to stop distribution of the song and the ring tone was withdrawn. Stan Borys sued CT, T1-Teraz, and Ryszard Andrzejewski.
The District Court in Warsaw in its judgment of 14 September 2010 case file I C 626/06 held most of the claims were justified. The Court ruled that the fragment used by PEJA by its transformation constitutes a derived work made from the work of Stan Borys. The manner of disposal of the derived work and the use thereof should be subject to the consent of the creator of the original work (the so-called dependent copyright), except where the economic rights in the original work have expired. Stan Borys is entitled to protection of his moral and economic rights. The court disagreed with the argument that the license agreement allows for the free dissemination of the work as specified in the agreement. The obligation to indicate the creator of the original song is saddled with both the creator of derived work (if one does not do that he or she risks the charges of plagiarism) and that one who distributes a derived work. The Court cited the judgment of the Appellate Court in Warsaw of 14 March 2006 case file VI ACa 1012/05. See “Copyright law, case VI ACa 1012/05“.
The court found that the lack of consent on the creation of a sample and dissemination of the work and the lack of designation of the author of the original work is the evidence of unlawful infringement of copyright and the rights to artistic performance by the CT Creative. In the assessment of the Court, the infringement was culpable in the form of at least negligence because it was associated with lack of diligence in examining whether distributed ringtones are not other people’s songs/works and such an obligation results from the professional nature of CT Creative’s business. However, intentional guilt can be attributed to CT Creative from 12 September 2005 when the company received a corresponding letter from Stan Bory’s attorney.
The court ruled that as a result of CT actions Stan Borys was deprived of possibility to exercise his rights of supervision over the use of the work, authorship rights and rights to cause the work to appear under his name and surname. The court also took into account the form in which the infringement has occurred. Stan Borys claimed that this violation was for him the more severe because the fragment of “Chmurami zatańczy sen” has been distorted in a caricature way and it was used in hip hop song, which included obscene words. Stan Borys did not and does not want to have nothing in common with this genre of music. The Court agreed with the argument that creating this sample in this given form depreciated previous works of Stan Borys. The court held that there is a causal link between the activities of CT Creative and the harm and damage caused to Stan Borys. This applied both to his personal rights (intangible) and economic rights to the copyrighted work because he did not receive any remuneration for the distribution of. The court ordered the cessation of the use and distribution of the work and ordered to pay 15000 PLN for the infringement of personal rights and 10000 PLN for the infringement of economic rights and rights in performance (three times of the equitable remuneration, which at the time of the enforcement would be payable to the entitled person for granting the permission for the use of the work), and to publish an apology.
CT Creative appealed. The Appeallate Court in Warsaw in its judgment case file I ACa 787/11 reversed the sum of compensation and send the case back for reconsideration.