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Archive for: right of publicity

Social networking sites, case I C 1272/09

March 19th, 2010, Tomasz Rychlicki

The District Court in Wrocław in a judgment of 18 March 2010, case file I C 1272/09, ruled that the advertising of one of the Polish banks that promoted payment cards in such a way that it used profile pictures of users of nasza-klasa.pl website infringed their personal rights. A user who logged into his or her profile was presented with an advertising that showed his or her face/image placed on credit card together with a slogan “your card for your personal account may look like this”. The Court held that users agreed to the provisions of the terms of service, but the permission to use their pictures concerned solely the purpose of social networking, not advertising. The Court ordered the owner of nasza-klasa.pl to pay the plaintiff 5000 PLN as a compensation. This judgment is not yet final.

Computer crime, case V K 1595/08

February 9th, 2010, Tomasz Rychlicki

Arnold Buzdygan brought a private accusation before the Regional Court for Wrocław Śródmieście V Criminal Division against Olgierd Rudak. The indictment was based on articles 212 § 2 and 216 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

The court in Wroclaw was obliged ex officio under article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction).

Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig had to decide on the location of the Internet.

[b]oth the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.

The court in an order of 31 December 2008, case file V K 1595/08, referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the court in Wrocław did not consider that the alleged offense was not committed.

See also “Personal rights, case I ACa 949/09“.

Athletics Associations can make the images of the members of their national representation available to sponsors

January 11th, 2010, Magdalena Gad

Such conclusion stems from the recent judgment of the Polish Supreme Court (SC) of 16 November 2009, case file I CSK 160/09, in which the Court confirmed that no consent of the portrayed sportsmen is necessary for the athletics association to make such images available to the sponsors.

The judgment came out as a result of a heated dispute between the Polish national football (soccer) team player Maciej Żurawski and TP S.A. (a telecommunication company) – the official sponsor of the team. The dispute regarded the unauthorized dissemination of Żurawski’ s image by TP S.A. in its various advertising and informational materials (such as fliers, posters, press and television). Żurawski desired that TP S.A. ceased to publish and disseminate his images and that it publicly apologized to him. The proceedings were joined by the Polish Football Association (PZPN) as a third party defendant.

The bone of contention in this case were the pictures taken during the photo shoot of the national soccer team prior to the world championship in Germany in 2006. The story goes that in 2004, PZPN entered into a sponsorship agreement with TP S.A., pursuant to which PZPN obliged itself to:

1) allow TP S.A. to use the pictures of the national team in all of TP S.A. advertising and informational materials; and
2) to obtain the respective players’ consent to do so.

In 2006 the national football team participated voluntarily in a photo shoot. All players were duly informed as to what purposes the pictures would serve, and how they would be used. However, no formal consent forms were signed. The players did not sign any Representative’s Cards (which explicitly stated the player’s obligation to participate in events such as i.e. the photo session in question) either. Additionally, none of the players received any remuneration for the photo session. And that’s what’s most problematic in this case.

Pursuant to article 81 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 later amendments, the right to disseminate the image of a person does not require the consent of that person (unless explicitly stated otherwise) if that person had received an agreed to remuneration.

The Court of first instance found for Zurawski, however the appeal court reversed and dismissed the case. The reason of that were differing interpretations of article 33(2) of the Act on Qualified Sports – AQS – (in Polish: Ustawa o sporcie kwalifikowanym) of 29 July 2005, Jurnal of Laws (Dziennik Ustaw) No 155, item 1298, with later amendments, which was relied on by TP S.A. and PZPN in their argumentation. Under article 33(1) of the AQS:

each member of the national team, grants an exclusive right to his/her image in the national representation team outfit, to an appropriate athletics association, which is then entitled to use that image for economic purposes within the scope set forth in the Statute of that association or other international organization active in that field.

However, the very same article in sec. 2 states that the representative does indeed give his/her consent to disseminate his/her image in the national representation team outfit, however he/she does that within the meaning of article 81(1) of the ARNR. And this led to two different interpretations by two different courts: court of I instance held that article 33(2) of the AQS creates a direct duty to obtain a separate consent from the sportsman, whereas the appeal court found that such consent is impliedly given the moment the athlete (here football player) joins the national team. The SC agreed with the latter interpretation, stating that by joining the national team the player does indeed agree to a significant limitation on his right to image, whenever the image consists of him in the national representation’s outfit. Other than that he retains full rights to his right to publicity (in particular image).

Hence, Żurawski ultimately lost the case.

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

Poland: artist’s name as a trade mark

September 15th, 2009, Tomasz Rychlicki

In the article entitled “Zamościu zapłać wdowie za Grechutę“, the Polish newspaper Gazeta Wyborcza reports on a shock that Marcin Zamoyski – the mayor of the town of Zamość – experienced after he received an official letter from MediaWay company. MediaWay represents Danuta Grechuta who is a widow of the famous Polish singer, songwriter and composer Marek Grechuta. The problem concerns “Marek Grechuta’s Zamość Culture Festival”.

Mrs Danuta Grechuta, in order to protect fame and popularity of Marek Grechuta against commercial use by third parties, applied on 18 September 2007 to the Polish Patent Office for the Marek Grechuta trade mark, Z-330297 for goods and services in classes 9, 14, 15, 16, 35, 38, 41, 42 and 45. According to Piotr Cholewiński, the president of MediaWay, Mrs Grechuta has no objections to the Zamość Cultural Festival itself. She just wants to protect her husband’s name and would like to decide on its use. He also added that Zamość municipality has never contacted Grechuta’s heirs for permission to use the name of this famous artist.

Jadwiga Machulewska, the director of the department of promotion, culture and social affairs of Zamość said that three years ago, before the festival was held for the first time, president Zamoyski sent a letter to Mrs Grechuta, telling her about the idea of commemorating her husband. Every year, he also sent an invitation to the festival, however, Mrs Grechuta did not use it. Machulewska also said that Zamość will pay this year for the use of Grechuta’s name in the third festival. The negotiations between representatives of the artist’s family and the town are not finished. Machulewska hopes that they will come to an agreement and continue the festival under its current name. The town, as organizer, does not profit from it and even subsidies this cultural event.

Zamość authorities do not want to resolve this matter in a court, although they could have a chance of winning the case. According to professor Ryszard Skubisz, who was cited by Gazeta Wyborcza, “by intelligent presentation of arguments the city could get out of this case unscathed … if this is not a commercial event, it is a cultural activity, which under the law is beyond the economic circulation, it may be presumed that the organizers did not infringed on the exclusive rights deriving from registration of the mark in the Patent Office”.

See also Ignacio Marqués’ note entitled “Spain – Unregistered artistic names: how to protect them?“.

Anonymous personal data

September 12th, 2008, Tomasz Rychlicki

There is an ongoing discussion at Piotr Waglowski’s website within the post entitled “GIODO: first name, surname, photo, school, class and graduation year – are not personal data…” concerning a recent decision of the Inspector General for Personal Data Protection (GIODO) of

September 3, (the date is illegible on the scan I’ve got), with a signature (again illegible) DOLiS/DEC 515/08/22857

However, I would like to write about deleting parties’ personal data from judgments decided during administrative proceedings. Just for example, see judgment of the Polish Supreme Administrative Court of 20 November 2007, case file II GSK 138/07 which is available only in Polish language.

The Supreme Administrative Court composed of the President: Judge Jan Kacprzak, after hearings of 20 November 2007, during non public session, in the Chamber of Commerce, on the motion of P. P. L. “K.” J. K. S. j. from L. regarding the separate division of a cassation complaint brought by R. B. G. with headquaters in F. an S., A. against the judgement of the Voivodeship Administrative Court in W. of 7 September 2006, case act signature VI SA/Wa 557/06 on the complaints of P. P. L. “K.” J. K. S. j. and R. B. G. with headquaters in F. an S., regarding the decision of the Polish Patent Office of November [...] 2005, No [...] on the invalidation proceedings of the right of protection of a trade mark, decides: to reject the motion.

So far so good and completely anonymously right? And I know… this text is badly translated and very complicated for non-Polish speaking readers and lawyers. Anyway, to have the story linked somehow I suggest you to visit the website of the Polish Patent Office (PPO). First, go under the “Press” link, where PPO, in accordance with a statutory license (or not), in the context of the current publications on industrial property law issues appearing in newspapers and web portals has made available neat news compilation of 12 September 2008, PDF file, which reads:

GAZETA PRAWNA, 12.09.2008, p. 9
“Even the renowned trade mark may be invalidated” (more…); author Joanna Barańska.
The reputation of the trade mark is irrelevant to the invalidation proceedings – a case of invalidation proceedings of the international trade mark registration of Red Bull sign in class 30 – for ice cream, confectionery products, etc. (case act signature II GSK 138/07).

I added the link to Gazeta Prawna’s article for the convenience of my respectable readers. With regard to personal data I recommend you to check the trademark database of Polish Patent Office and to perform a search with the fololowing criteria used in the advanced search options (TLP ZawWyr ‘ “Red” and “bull”‘) AND (NIC ZawWyr’30′).

Applicant/owner: Red Bull GmbH, Fuschl am See, AT
Plenipotentiary: Drzewiecki, Tomaszek & Wspólnicy Spółka Jawna Jarosz Wojciech, Warszawa, PL

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

My post that was written in Polish language is too long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, case file I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in article 23. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions 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 later amendments.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided in the Act of 26 January 1984 on Press Law, the Criminal Code and the Act of 29 August 1997 on Protection of Personal Data. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

And, of course, from the European Convention on Human Rights of 4 November 1950.

June 10th, 2008, Tomasz Rychlicki

I browsed through specific or peculiar artworks of Rob Nance that are available at artforrobots.com website. I started to think more when I saw “Poseable Paper Pope”. Is it parody or just bad taste? De gustibus non disputandum est. Publicity right? It is quite relaxing situation for Mr Nance that Vatican does not sue so eagerly as it usually happens in the US. Just check such case as White v. Samsung, 971 F. 2d 1395 (9th Cir. 1992). Ms Vanna White (I have to add that Magda Masny was her counterpart in Poland) has sued Samsung for using her “image” in Samsung’s ads. I really really recommend you to read this judgment. Below, on the left, you’ll find a black and white image of Ms White and on the right, her “likeness” that was used in Samsung advertising campaign.
971_F.2d_1395-pictures

Judge Alex Kozinski wrote opinion for Vanna White v. Samsung, 989 F.2d 1512, 26 U.S.P.Q.2d 1362, 21 Media L. Rep. 1330 (9th Cir. 1993), which was the petition for rehearing in the above mentioned case. You may already know that I like his style and I often cite his profound deliberations as I did it in the post titled “Oh, these Internet’s contracts“.