by Piotr Kopec
Is it possible to disseminate our image without our permission?
I would like to answer the question of whether the dissemination of the image of a person always requires permission of that person or there are situations in which someone can disseminate our image in accordance with the law without our permission.
What is the image?
First of all it is necessary to explain what the image is. Polish law does not contain a definition of the image. However attempts to answer the question what the image is were made among representatives of the legal doctrine and in judicial decisions. Without going into a detailed analysis of this issue, it can be assumed that the image is connected with the physical attributes of a person that allow to identify the person. In particular, the notion of image shall include photographs, drawings, clipping figures, movies or cartoons.
What is the dissemination?
The dissemination is such a situation that gives an opportunity to get acquainted with the image of a person to the unspecified group of people. The following situations are examples of the dissemination: the publication of photos in the newspaper, in movie or on Internet portals like Facebook or Instagram.
When is it allowed to disseminate an image of a person?
The issue of the dissemination of an image was regulated in Law on Copyright and Related Rights. As a rule, the dissemination of an image shall require the permission of the person presented in it. However Law on Copyright and Related Rights provides for the following situations in which the dissemination of the image of a person is acceptable without permission.
1. The permission of a person to disseminate the image
The simplest situation in which a person agrees to disseminate its image. Such a permission may be expressed in various forms – it can be the permission given in writing, orally, or other specific forms such us a notarial deed. It is controversial whether such a permission must be expressed directly or it may be presumed that a person has consented to the publication of its image.
2. Person has received the agreed price for posing
Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing. So if the person posed (for example a model during a photo session) and received in this respect the agreed price, the permission to disseminate the image is not necessary for the person who paid the agreed price. The fact of obtaining money constitutes the remuneration for granting permission to disseminate the image. The person posing may, however, reserve the that it does not agree to the disseminate the image despite the fact that accepts payment. It must be underlined that such a reservation must be made before taking money for posing.
3. Commonly known persons
The permission shall not be required for dissemination of the image 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. Who can be treated as the commonly known person? Generally speaking the commonly known persons are the people who explicitly or implicitly agree to publish information about their life. These are mostly actors, singers, politicians, journalists, celebrities, athletes.
4. A person constituting only a detail of a whole
The permission shall not be required for dissemination of the image of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event. The purpose of this regulation is to enable the dissemination of information about the events of political, economic, cultural, sport meaning. In other words, it does not require our permission to disseminate photos of demonstrations in which we participated or a football match that we attended as spectators.
What can we do if our image was unlawfully distributed?
Based on the provision of Civil Code and the Law on Copyright and Related Rights, we can distinguish the following steps that can be taken against person who unlawfully distributed our image:
1. we can demand that the dissemination of the image can not be further continued ( for example we can demand to remove photos from facebook),
2. we can demand to remove the effects of the dissemination (for example we can demand the apology to the newspaper),
3. we can demand compensation in cash for the non-pecuniary damage,
4. we can demand contributing a specific sum on the public goal,
5. we can demand compensation for the loss suffered in connection with the dissemination of its image.