“This could cost you a lot of money, Areczek…”Briefly on image protection.

Many of us have come across memes containing the phrase “Areczek…”. They mock the reality of companies where an authoritarian management style prevails, the rights of the employed are disregarded, the needs of senior staff are not spared at the expense of the employed, the company and its contractors. “Areczek, just think: if everyone had a bonus, no one would make an effort,” says Areczek. “Areczek, for the future: milk and coffee are for the management. Anetka from Human Resources will deduct it from your pay.”or “Areczek, I’ve heard you want a better boss? Then tomorrow you will set up a company and work for us as self-employed” are not bad either.  In recent days, the press has reported that a local government official from Podlasie whose image features in their framework wants to sue a manufacturer of fridge magnets. Magnets with his image in the role of ‘Areczek’s Boss’ have appeared in proposals for stands on the promenades of Baltic seaside resorts.[1]

What does the law say about this?

The image, as a personal good, is protected by both civil law and copyright law – here, Article 81 of copyright law is key. It stipulates that the dissemination of an image requires the consent of the person depicted in it. This requirement does not apply to the dissemination of images of well-known persons if the image has been made in the performance of public functions, including political, social, professional functions. Accordingly, we may disseminate the image of a well-known artist or politician during a performance or an election rally, although not necessarily during his or her holiday or holiday. The requirement also does not apply when the image of a specific person is only a detail of a whole such as a gathering, landscape or public event. In most cases, it is therefore possible to share images of landscapes from holiday trails without much concern, even if another tourist accidentally enters the frame. The obligation to obtain permission for dissemination is waived by the receipt of a ‘payment for posing’ – unless a stipulation to the contrary appears from the wording of the contract with the model.

What claims can we pursue when someone commercially exploits our image without our consent?

Firstly, it is possible to demand the cessation of further publications (such action may be prohibited by the court in its judgment) or, for example, the removal of images for the dissemination of which the infringer has not obtained consent (such action may also be ordered by the court).
It is not worth ignoring such rulings – the creditor may initiate enforcement proceedings, under which the court may impose fines until the ruling is enforced.

If the infringement was culpable, the court may award an appropriate amount of compensation for the non-material damage suffered – either to the plaintiff or to a social cause pointed out by the plaintiff. The association of compensation with non-material damage means, in my opinion, that it is a qualified infringement – that is the dissemination of the image in circumstances that expose to discomfort or embarrassment related to the violation of intimacy, ridicule, depiction in a disadvantageous situation – in such circumstances that, in an objective assessment, result in “negative psychological experiences” – as the case law defines it.

This does not mean that in the absence of infringements of a harmful nature, monetary claims are excluded. Civil law protection of personal property – including the right of personal image – is independent of the protection provided by other branches of law, including copyright (Article 24 § 3 of the Civil Code). The Code explicitly indicates that in case of violation, damages due for damage may be claimed (Article 24 § 2 of the Civil Code). However, this is about damage in the normative sense, which is not always easy to prove, as well as the connection between the infringement and the damage. In the title case – it would be necessary to assume and demonstrate a close connection between the action of the magnet manufacturer and the damage to the property of the local government. This would certainly be a demanding task.

Does this mean that, in the absence of a damage giving rise to compensation, the person whose image has been disseminated without his or her consent has no chance of being paid? In my opinion – no. The rules of tort liability (Article 415 of the Civil Code) or unjust enrichment (Article 405 of the Civil Code) come into play. When assessing the litigation chances of the Podlasie local government official, it is worth looking at the position of the Supreme Court expressed in case I CSK 790/18. The Highest Instance had no doubts that a person whose image has been disseminated without his/her consent is entitled to a claim for the surrender by the infringer of the benefit obtained therefrom – based on Article 405 of the Civil Code. Moreover, in the case of well-known persons, the benefit obtained as a result of the commercial dissemination of the image of a well-known person without his or her consent may correspond to the amount of remuneration due to that person if he or she had concluded a contract for the dissemination of the image.

There is therefore a good chance that ‘Areczek’s boss’ is not only – as the boss is – right,???? but that he will show his claws again, this time no longer in virtual reality.

And it will do so effectively.

P.S. And you could ask the artificial intelligence to generate an image of “Mr. Areczek’s boss”, as we did, thay is @Żyglicka and Associates

[1] https://next.gazeta.pl/next/7,151243,30039421,bohater-slynnych-memow-ma-dosc-koniec-z-panie-areczku-sprawa.html#s=BoxOpImg3