The use of image is an aspect that each of us encounters due to technological advancements. It is captured in all sorts of ways, whether in photos on a company's website or in a television commercial promoting a given product. To better understand the topic at hand, it's important to understand what image actually is.
What is an image?
According to the Polish dictionary, an image is defined as someone's likeness in a drawing, painting, photograph, etc., but it also refers to the way a person or thing is perceived and presented. By using someone's image, they can be recognized by others. It's probably important for each of us to be portrayed in an "appropriate light." Therefore, the law provides measures to protect every person's image from unlawful use, inappropriate exploitation, and the negative consequences of such actions. It's important to remember that an image isn't just about our appearance. It can also include our characteristic features, such as a specific laugh, manner of speaking, gestures, facial expressions, etc.
Representing someone's image can take various forms, including: in an image (e.g. a photo), in a recording (e.g. a film, a dictaphone recording), in writing (e.g. a novel).
Image protection
We are entitled to image protection under the Copyright and Related Rights Act, the Civil Code, and the Personal Data Protection Act. Article 23 of the Civil Code distinguishes personal rights, which include the image, and its protection can be sought under Article 24. Articles 8 and 23 of the Personal Data Protection Act define an image as personal data, the unlawful use of which may lead to legal problems. Article 78, paragraph 1 of the Copyright Act provides for protective measures such as a demand to cease and desist (e.g., removal of a photo added without consent from Facebook) and a demand to remedy the effects of the infringement (e.g., a public apology).
Exceptions to consent to the use of an image
Is the image of a well-known person different from the image of other people? The legislator has permitted the use of the image of a well-known person if it is related to the function that person performs (e.g., you can distribute a photo of your favorite artist at a concert, but not if you met them in a local store). In its judgment of 20 January 2017, II FSK 3873/14, the Supreme Administrative Court ruled: " The image of a coach may also be used within the scope specified in Article 81, paragraph 2 of the Act of 4 February 1994 on Copyright and Related Rights, and therefore a sports club or other entity may distribute the image of a coach as a well-known person (without permission) if the image was created in connection with the performance of, among other professional functions." Pursuant to the agreement entered into by the applicant, the applicant will transfer, for a fee, the rights to his image to the sports club, in a scope broader than merely related to the performance of his duties as a coach (i.e., broader than that specified in Article 81, Section 1 of the Act on Personal Data Protection). The coach's image (as well as his voice and autograph) may be used by the sports club in all known fields of exploitation and recorded on all media, without territorial restrictions. Therefore, using the image of a well-known person in connection with the function they perform does not require consent.
Is this the only case where consent is not required? Consent is not required when the person shown in the photo is merely a detail, a random element, e.g., a photograph of a landscape, or a photo taken by a photographer at a concert.
What if the employer uses the image?
Employers often use employee images, including on their company websites. This allows interested parties to see the company "from the inside," building trust and presenting the company in a positive light, which often has positive consequences for company evaluation. However, for this to happen, the employee must consent. It cannot be assumed that by signing an employment contract, the employee consents to the use of their image. It cannot be presumed, and an employee who has given such consent can withdraw it at any time. It is not required to have it in writing, but for evidentiary reasons, this form is the best solution. How long is such consent granted for? The regulations do not specify how long employees' personal data are stored, but it cannot be longer than necessary. The most beneficial solution for the employee would be to conclude such consent for the duration of the employment contract. This solution will provide employees with a sense of security that their data, including their image, will not be used after the employment relationship ends. Publishing an image without the employee's consent is possible in situations where the employee has been paid for posing. As stated by the Supreme Court in its judgment of 26 April 2018, II CK 330/03, the burden of proof that the dissemination of the image did not exceed the scope of the permission obtained and the specified purpose rests with the person disseminating the image – therefore, it is the employer who is obliged to prove that the employee’s image was not used against his will.
In summary, an image is not just a picture, but also sound, gestures, and facial expressions. These days, virtually everything is uploaded online. This poses numerous risks, including those related to information, data, and so on. Legal use of an image only occurs with express consent, preferably in writing (there are exceptions, as mentioned above, where consent is not required). Unlawful use of an image is protected by the Civil Code, the Personal Data Protection Act, and the Copyright Act. It's important to remember that before consenting to the sharing of our image, we should understand the purpose for which it is being used, the scope, and the duration of the sharing.
