Dissemination of a person’s image as a detail in a larger whole: Theory and practice
Dissemination of people’s images is an essential ingredient of the media, both traditional and new. In an audiovisual work, the absence of human images strips the scene of human characters, and without them the media impact is lost. Under the applicable regulations, as a rule there is a duty to obtain the permission of the person whose image is presented, but consent is not required when the image of an individual constitutes only a detail of a larger whole such as a gathering, landscape, or public event. This distinction seems understandable and even intuitive, but how should it be applied in practice? The answer is not so obvious, and requires more extensive analysis.
What is a person’s image?
The nature of an image as a detail in a broader whole cannot be determined without understanding what an image is. Although this notion is crucial to the visual arts, the current regulations in Poland do not contain a statutory definition of an image. Thus if we are to discuss this issue, we need to examine judicial decisions and the legal literature.
According to a Polish dictionary, “image” (wizerunek) means “someone’s likeness in a drawing, painting, photograph or the like,” as well as “the manner in which a given person or thing is perceived and presented.” A more specific definition is provided by legal scholars, who state that an image is “an intangible work which through artistic means presents the recognisable likeness of a given person” (J. Barta & R. Markiewicz, Commentary on the Copyright Act, Warsaw 1995, p. 629). An image is generally referred to in the legal literature as a personal good comprising “features enabling a given person to be distinguished or characterised” (K. Święcka & J. Święcki, Copyright and related rights: Commentary, Warsaw 2004, p. 140). It is most often associated with the external features of a person, particularly his or her face, but according to some scholars it should not be restricted only to a person’s anatomical features (J. Sieńczyło-Chlabicz, “Object, subject, and the nature of the right to image,” PUG 2003 no. 8, p. 20).
Image comprises the totality of external features that in the eyes of the audience characterise the given person. This includes both natural features such as the shape and colour of the eyes, as well as elements of dress or ornament (e.g. glasses, hairstyle, makeup, clothing and accessories) which, separate from or in combination with other features, are characteristic for a given person. Significantly, some commentators expand the notion of image to include “voice, and sometimes even the use of characteristic phrases, or a distinct manner of moving, behaviour or gesture” (J. Barta & R. Markiewicz (eds), The media and personal interests, Wolters Kluwer Polska, Warsaw 2009, p. 99).
The definitions of “image” indicated above are consistent with the rulings of the general courts in Poland, under which image means “the perceptible, physical characteristics of a person making up his or her appearance and enabling identification of the given person among other persons, but also the specific fixing of the physical picture of a person capable of duplication and dissemination” (Kraków Court of Appeal judgment of 19 April 2016, case no. I ACa 1826/15).
The Supreme Court of Poland has held that this framework may also include additional elements associated with the practice of a profession, such as clothing, ornament, way of moving, or other identifying elements such as glasses or hairstyle, or even the specific lines of a person’s profile or characteristic shadow (judgment of 20 May 2014, case no. II CK 330/03).
The line of judicial decisions is consistent with the views of legal scholars who have elaborated on the concept of “image,” and for the most part also consistent with the common understanding of this notion.
Requirement of recognisability
A basic criterion for regarding the presentation of a person as an image is that it is recognisable to third parties.
For the courts to find that the requirement of recognisability has been met, the following circumstances are decisive:
- The person should be recognisable based on features objectively regarded as characteristic, such as face, certain anatomical features, the overall physical picture or a characteristic fragment.
- The characteristic features presented enable recognition and identification of a specific person, and do not merely evoke an association with a specific person or an imagined picture of the person.
- The person portrayed should be recognisable not only for a small circle of family and friends, but also for third parties in an environment where the person is often present, such as neighbours.
Only when the requirement of recognisability is met can a person’s image be infringed.
Image as a detail in a larger whole
Under the Copyright Act, dissemination of an image requires the permission of the person presented.
One exception where permission is not required is dissemination of an image of a person constituting only a detail in a larger whole, such as a gathering, landscape or public event (Copyright Act Art. 81(2)(2)).
Significantly, the act does not establish a fixed list of circumstances releasing users from the requirement to obtain consent to dissemination of an image, as indicate by the use in the act of the phrase “such as.” The “whole” referred to in this provision may thus refer to protesters, a group of sports fans sitting in the bleachers, a peloton of cyclists, or the audience at a lecture. The image of a person taking part in such collective events will not be subject to protection and such persons will not be able to obtain an order barring dissemination of the image.
While it is undoubted that an image constituting a detail of a larger whole is not entitled to protection, and this can refer to any form of collective, it is not clear at what point an image forms a detail of a whole, that is, when it ceases to be one of many individual images.
When is an image a detail in a larger whole?
Given the variety of situations in which images are captured, and the various forms presenting them, the number of figures whose images are sufficient to make up a totality which can be disseminated without the consent of the individuals cannot be stated with any exactness.
The courts have developed a criterion in this respect in the relationship between the image of the individual seeking protection and the remaining elements of the scene in which the individual’s image is captured. Under the commonly accepted position, dissemination of an image does not require permission if it is only an incidental or auxiliary element of the presented whole. In other words, as long as the image only makes up part of the “background” for the scene, dissemination of the image will not require permission.
To define as precisely as possible the significance of the image for the analysed presentation, a test is conducted under which use of an image does not require permission only if removal of the figure would not alter the subject or character of the presentation. But if the dominant frame is the image of a specific person (for example if the photographer focuses on one person, highlighting that person), dissemination requires the permission of the person presented in the frame (Kraków Court of Appeal judgment of 19 December 2001, case no. ACa 957/01).
In particular judgments, the following have been held to be an image making up an element of a larger whole:
- A shot of a waiter in the “background” of film footage from a restaurant—but when the waiter is captured standing and “showcased” for about 10 seconds, becoming for that time an essential figure in the footage, the film no longer falls within this exception (Warsaw Court of Appeal judgment of 15 September 2016, case no. I ACa 1559/15)
- A photo of participants in a mass or pilgrimage (Katowice Court of Appeal judgment of 30 September 2013, case no. II AKa 201/13)
- A class photo (Wrocław Court of Appeal judgment of 30 January 2014, case no. I ACa 1452/13).
By contrast, an image that according to the court cannot be disseminated without permission is a shot in which the photographer selects a specific figure from the crowd for framing, enlargement, closeup or the like. That no longer falls within the exception (Białystok Court of Appeal judgment of 14 November 2012, case no. I ACa 543/12).
An image auxiliary to the whole should be contrasted with a “collective image.” A collective image captures the images of a group of persons, perceived not as a new entity but only as the effect of capturing them in one medium at the same time and place. In other words, a collective presents more than one image, but the images function separately rather than making up a larger whole.
The notion of a collective image does not function in a statutory sense, but can be encountered in practice. Examples given in the legal literature of a collective image include the couple in a wedding portrait, or a photo of members of a music group or sports medallists on the podium. Such examples of the subjects of a collective image are uncontroversial, as each of the persons is an essential element of the scene or event, without whom it would be a different scene or event. In such cases it is necessary to obtain the consent of all the persons depicted to disseminate their image.
Practical evaluation of image as a detail in a larger whole
How should the positions discussed above from judicial decisions and the legal literature be interpreted in practice?
Under the developed practice, an image is considered auxiliary or incidental if removing or omitting the image would not affect the nature and substance of the material containing the image. Using the example of a photo of a group of pilgrims greeting the Pope as he passes through the streets of the city, or spectators seated in a section of the stadium during a football match, it should be recognised that removal of the image of a single person from either of these groups would not alter the meaning of the picture. In such case, a single image does not affect the nature or content of the material. Thus dissemination of such pictures with numerous images of persons gathered at a single place as a collective does not require consent.
The opposite result should follow in the case of a picture capturing a passer-by in the foreground, against a background of a group of other persons walking along, for example with the aim of depicting the dress or fashions of the inhabitants of the region. The image of such a passer-by, occupying most of the frame, should not be treated as an auxiliary element without which the picture would carry the same character and tone.
When considering in each instance whether a given image constitutes a detail in a larger whole, and thus whether dissemination of the images requires the consent of the subjects presented, it should be borne in mind that the exception addressed here was included in the Copyright Act to further the freedom of press reporting. Thus any doubts as to the activity of the media should be interpreted with a view to the purpose of the publication and how the picture in question would be received by the average viewer.
Paweł Czajkowski, adwokat, Intellectual Property practice, Wardyński & Partners