The fashion industry has been increasingly aware of the practice of using third party pictures for promotion purposes without authorisation. Third party content is used as website or on-line store decoration in a process that is nothing more than feeding on somebody else’s creativity without having to pay for it.

 

Can pictures of products (designs) be protected?

If a photograph is an expression of creative efforts of an individual character, it is copyrightable (see Article 1(1) Copyrights Act).

This test is considered to be failed in only exceptional cases. Thus, creativity and individual character are denied to photocopies (e.g. documents such as diplomas, certificates, licenses), to reproductions of flat items with little to no granulation, and to technical photographs made strictly in accordance with agreed or generally accepted specifications and being of a documentary character only.

Based on Copyrights Act, Polish courts have denied copyrightability to, for example, jewellery pictures made for on-line auction purposes and to pictures of parts of buildings, such as fireplaces and doors (see the list of judicial authorities in “Check what we refer to”, points 4 to 9).

Product pictures may be copyrightable. A photographer’s creativity is reflected in her choices (place, lighting, exposure time, arrangement, photographing method, etc.) which affect the outcome. Creativity may even manifest itself where the photographer catches a special moment that records a unique layout of objects (e.g. a finger pointing at some other person, see Gdańsk Court of Appeals judgment of 21 June 2012, V ACa 549/12).

Contract with photographer is the key

Copyrights are vested in the author, subject to strict exceptions listed in the law, such as works-for-hire (Articles 8(1) and 12(1) Copyrights Act). In the fashion industry, photographers are usually engaged pursuant to contracts for services or contracts for specific work so it is important to ensure that a formally correct copyrights assignment is in place.

Quite a number of copyrights assignment clauses used in commerce are improperly structured (e.g. they are silent about the uses to which the work may be put (pola eksploatacji), see Article 41(2) Copyrights Act). And errors are costly in business terms because the overall contract may be void not just to the extent it relates to copyrights transfer. It is even possible that the entire contract will be held invalid if it is clear in the circumstances that it would not have been entered into without the invalid provisions (see Article 58(3) Civil Code).

If the photographic session involves also other professionals, such as stylists or decorators, you should remember about signing copyrights assignments also with them to prevent co-author rights infringement claims.

If our competitor infringes on our copyrights, we have a number of remedies available as listed in Article 79(1) Copyrights Act. For example, we can demand cessation of the infringing conduct and/or restitution of unfair profits of the infringer.

Another point to remember is the rights, including privacy, of the person being photographed. Here, you need to obtain the model’s consent to distribute her or his image (Article 81(1) Copyrights Act; for minors, see our article here).

That consent cannot be presumed. However, in the absence of an express stipulation to the contrary, consent will not be required if the person has received the agreed modelling fee (Article 81(1) Copyrights Act).

Unfair competitor

Unauthorised use of product pictures may be treated as an unfair competition practice under UCCA, notwithstanding any other treatment that may be available. The reason is that it involves a risk of mistake on the part of the customers and is capable of having a real effect on the customer’s purchase decision (see UCCA Articles 10(1), 14(2)(2) or 16(1)(2)). The remedies available to a business that falls victim to unfair competition are listed in Article 18 UCCA.

In the case of infringement, the particular claims raised are chosen on a case-by-case basis in accordance with all the facts and the client’s expectations. In this context, you can rely exclusively on Copyrights Act, exclusively on UCCA, or on both.

 

____

Check what we refer to:

  • The Copyright and Related Rights Act of 4 February 1994 (Journal of Laws of 2017, item 880) (“Copyrights Act”), Article 1
  • The Civil Code Act of 23 April 1964 (Journal of Laws of 2017, item 459) (“CC”), Article 58(3)
  • The Unfair Competition (Combating) Act of 16 April 1993 (Journal of Laws of 2017, item 419)(“UCCA”), Articles 10(1), 14(2)(2), 16(1)(2)
  • Kraków Court of Appeals judgment dated 19 July 2016, case no. I ACa 324/16
  • Białystok Court of Appeals judgment dated 19 February 2016 I ACa 955/15
  • Lublin Court of Appeals judgment dated 26 May 2010, I ACa 206/10
  • Lublin Court of Appeals judgment dated 18 December 2008, I ACa 602/08
  • Supreme Court judgment dated 26 June 1998, I PKN 196/98, OSP 1999, z. 11, poz. 207
  • Warsaw Court of Appeals judgment dated 5 July 1995, I ACr 453/95;
  • Gdańsk Court of Appeals judgment dated 21 June 2012 V ACa 549/12.