Using the image of a public figure in memes: Where is the boundary?
Internet users don’t need to be told what a meme is. But for the sake of order, according to Merriam-Webster, a meme in this sense is defined as “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media.” Memes have found a home in virtual reality, not only in sites especially devoted to memes but also in social media and news sites, where memes are often used to illustrate comments on current political events.
The refinement of memes can vary, as can their topics. Some use wordplay, a surprising juxtaposition, or other humorous effect, while others are crude or downright vulgar. Some touch on social problems or current political events, while others make light of human foibles or ridicule the subjects.
The authors of many memes use images of well-known people: politicians, actors, singers, athletes, or others whose activity is publicly known and commented on. Some of these persons, due to their social position, the profession they practise, the activity they perform, or simply their desire for a media presence, themselves condone public comment on their lives. In this situation, it is easy to cross the boundary of what is permissible and encroach upon the sphere of legally protected interests. It can also be difficult to distinguish between an allowable joke and an insult. In the case of memes, these boundaries are set primarily by the regulations protecting personal interests, in particular image and reputation.
Image as a legally protected interest
As stated in the case law, “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” (Kraków Court of Appeal judgment of 19 April 2016, case no. I ACa 1826/15). It is recognised that image means not only a person’s anatomy, but also other identifying elements such as characteristic glasses, hairstyle, clothing or accessories. It can even be a characteristic manner of behaving, a profile or specific shadow. It’s not hard to identify from the outlines of their profile alone such figures as Charlie Chaplin (or the character of the Little Tramp created by the actor), Elvis Presley, or, say, Donald Trump. But an image must always enable recognition of a person.
Infringement of an image occurs through its dissemination. Under Art. 81 of the Polish Copyright Act, use of the image of a public figure is legal if:
- The person is commonly known, and
- The image is made in connection with performance of public functions by the person, in particular political, social or professional functions.
The act does not include a definition of a “commonly known person,” but this gap is filled by extensive case law. According to the Supreme Court of Poland, this group includes “persons who expressly or implicitly consent to the public release of information about their lives” (judgment of 20 July 2017, case no. I CSK 134/07). As the court stressed, these are not just actors, performers or politicians, but also persons known from their pursuit of other activity, such as commercial or social. Thus this does not refer only to persons holding public office, as the key criterion for this determination is their acquired level of recognition. As indicated in the case law, “A certain group of persons may be assumed to fall within the set of commonly known persons for purpose of the copyright regulations either due to the office they hold or the profession they practise (athletes, actors, journalists), particularly when the person practising that profession gains popularity” (Poznań Court of Appeal judgment of 2 September 2010, case no. I ACa 620/10). These can be people who consciously decide to live their lives in the spotlight of public interest, or ordinary people who have become recognisable for example as participants in prominent events or perpetrators of serious offences.
In evaluating an alleged infringement, it can be difficult to determine whether the image was made in connection with performance of a public function. There is no doubt that this is the case for example when the prime minister is photographed delivering a public address or during an official visit. But should a representation of the prime minister be treated the same when it is made in a private situation, for example on a bike ride with his family? In this case, the courts tend to expand the scope of permissible intervention in the private lies of public figures. As the Polish Constitutional Tribunal has held, “Protection of the sphere of private life is subject to certain limitations justified by a ‘legitimate interest’” (judgment of 21 October 1998, case no. K 24/98, OTK 1998 no. 6 item 97). Public figures must accept the interest of public opinion, also encroaching on private life. But as the courts have held, the boundary is the sphere of intimate life, which is violated when paparazzi take pictures from hiding.
The legal literature and case law also indicate a further condition, not expressly stated in the act, which is the purpose of the dissemination. An image may be disseminated only with the aim of relating public functions performed by the person, if this can be relevant for evaluating the person as a public figure. In this respect, it may be doubtful to what degree this defined aim of dissemination can justify the publication of an image made in a private situation unrelated to the person’s public function. As the Supreme Court has held, “There is no doubt that with respect to persons conducting public activity, intrusion on the sphere of privacy is more broadly justified than in relation to persons not belonging to this category. … The scope of the right to freedom of expression must be weighed taking into consideration the traditions and sense of tolerance in the given society” (judgment of 11 October 2001, case no. II CKN 559/99). This does not change the fact that even with respect to persons conducting public activity, interference in the sphere of privacy may occur only exceptionally, for example if there is a connection between the person’s private behaviour and public activity.
Examples from the courts
Even before the era of internet memes, in a case involving a newspaper publication of a photomontage comparing the mayor of Siedlce and Charlie Chaplin, the Supreme Court indicated the permissibility of disseminating an image without the permission of the person presented only when the conditions discussed above are met (judgment of 27 January 2006, case no. III CSK 89/05). In that case the court held that the first of these conditions was met, because serving as the mayor of a city makes one a public figure. However, the court found that the second condition was not met, because the mayor’s image used in the newspaper was not made in connection with the plaintiff’s performance of a public function. The court did not explain its reasoning for that finding. But the court of appeal in the same case had found that the aim of the publication was to ridicule the mayor, based on the photomontage and the accompanying text. As the court of appeal explained, “Neither the picture nor the content of the article relates to decisions taken by the plaintiff as mayor of Siedlce, and thus it cannot be assumed that the point was exposure of erroneous decisions, or permissible criticism.”
In another ruling, the Supreme Court resolved a dispute between a popular TV actress, Anna M., and the publisher of the newspaper F., which had published an article about her holiday visit to Egypt illustrated with photos of the actress topless. The court agreed that the plaintiff’s pursuit of the acting profession and her status as a celebrity meant that she qualified as a public figure. But the court pointed out that in cases of this type, a link must be demonstrated between the person’s public activity and the published information, or information of a private character. As the court held, “There must be a connection between the behaviour of the person in the public sphere and her behaviour in the private square; … disclosure of such information or image must further the protection of a specific, legitimate social interest, which cannot be identified with the mere need to satisfy the curiosity of a certain group of people” (judgment of 24 January 2008, case no. I CSK 341/07).
The Supreme Court has also emphasised that the decision to publish a person’s image must always be preceded by an analysis of the circumstances in which the image was captured and the context in which it is published. As the court stated, “Each case requires a thorough analysis of whether, in light of the overall circumstances of the matter, including the informational value conveyed by the photograph, its publication was permissible” (judgment of 10 January 2017, case no. V CSK 51/17).
Memes and protection of image
The application of these criteria to assessment of internet memes using the image of a public figure does not raise serious doubts. Take for example the image of the prime minister on a bicycle trip with his family, which he posted on his official account on social media. The whole scene soon became the subject of mordant memes, pointing out that despite the heat wave, the prime minister was peddling in long trousers, and neither he nor the rest of his family seemed to have broken a sweat. The memes thus suggested that the bike ride was staged for the purpose of the photograph. The memes also pointed out that none of the cyclists was wearing a helmet, and sarcastically claimed that the aim of the trip was to verify that the forest was suitable for logging, to the delight of State Forests, overseen by the environment minister.
The first test of the legality of such memes is to determine whether the subject is a commonly known person. The prime minister undoubtedly qualified as such, as he is a politician holding public office. Then it should be weighed whether the boundary of the sphere of life which a public figure consents to share with others was crossed. The photo did appear to be taken outside of a situation where the prime minister was performing a public role, during his leisure time. Nonetheless, by posting the photo on his official social media account, the prime minister acknowledged that presenting himself along with his family was warranted from the point of view of the public office he holds. The attitude of the prime minister presenting his ties to his family would undoubtedly be relevant to at least some voters, as it could warm his image and build up public trust in him. The aim of dissemination of the image then needs to be evaluated. And here is where the greatest doubt arises. It could prove difficult for the court to determine whether such an image may be used to show that the scene was staged for the purpose of burnishing the prime minister’s image, to draw attention to the need to wear bike helmets, or to manifest criticism against thoughtless logging of the forest.
Other means of protection
The right to one’s image is obviously not the only thing at issue in the discussion of the legality of memes using illustrations of well-known persons. The content of the meme could also justify an allegation of infringement of other personal interests as well, such as the reputation of the person depicted. A crude or vulgar text under the person’s image might be falsely attributed to the person pictured. This could create or enhance a false picture of the person as someone unrefined, insensitive, crude, unscrupulous or vulgar. Inclusion of the person’s image in certain contexts could create an impression that he or she has socially unacceptable traits, such as alcoholism or susceptibility to corruption. But if by his own behaviour the subject provides grounds for such an unfavourable portrayal, the boundary between what is permissible and what is not can be hard to draw.
Liability for publication of a meme based on the Press Law must also be remembered. Essentially this includes the rule that liability for a violation of law caused by publication of press material is borne by the author, the editor, or other person who caused the material to be published. This does not exclude the liability of the publisher, however. We should also mention Art. 14(6) of the Press Law, which provides that information or data concerning the private sphere of life cannot be published without the consent of the subject, unless it is directly connected with the person’s public activity. There is also a separate provision in the Electronic Services Act governing the liability of portals allowing the publication of memes. In this respect, it should be found under Art. 14(1) of that act that the portal will not be liable if it does not know of the unlawful nature of the meme, and blocks access to the content when it receives official notice or obtains reliable information about its unlawful nature.
More drastic means are provided under the criminal law. Criminal liability can be imposed through means for protection of personal interests. In particular, this concerns prosecution at the request of the injured party for the offence of defamation (Criminal Code Art. 212) or insult (Art. 216). This lesson was learned by the author of a meme presenting a sportsman and candidate for parliament in a photo taken during a visit to the Presidential Palace, linked with the caption “New fashion in the 21st century: The hogs are still hungry but the trough is narrow.” The court sentenced the author of the meme to a fine for criminal libel (Criminal Code Art. 212). In the court’s view, the meme “served a stigmatising function and cast into doubt the integrity of D.K. and his intentions in acting on behalf of society, which could discredit him in the eyes of the persons for whom he acted” (Warsaw Court of Appeal judgment of 20 October 2015, case no. VI Ka 700/15). With respect to the use of a person’s image, the application of other provisions of criminal law also cannot be excluded, such as Criminal Code Art. 191a, which provides for criminal responsibility for dissemination of an image of a naked person without his or her consent.
Creators of memes must remember that they do not function in a vacuum, and the internet is not a world where everyone is anonymous and traditional rules of decency do not apply. That someone by his own words or deeds gives cause for jokes or biting commentary does not mean that everything is permitted and authors of memes can act with impunity. Everything has its limits, and the law provides tools for enforcing social norms. It must also be remembered that under certain circumstances, liability may rest not only on the author, but also on other persons. Under the Press Law, this could be the editor or other person responsible for publication of such a meme, particularly the publisher. The operator of a website may also be held liable.
Norbert Walasek, adwokat, Intellectual Property practice, Wardyński & Partners