Selfies as copyrighted material?

Can a selfie be the subject of copyright?

According to the defendant, a simple selfie photo should not be considered a work within the meaning of the Act of 4 February 1994 (Journal of Laws 2022, item 2509) (‘PrAut’). However, the Court did not share this position, pointing out that the technique of taking the photograph does not deprive it of its creative character.

On the other hand, when examining whether a given photograph may be deemed to be a work, it would be necessary to check, for instance, whether it is posed or stylised thanks to the chosen colours, whether the person in it is wearing matching clothes or accessories selected especially for the occasion, as well as whether the photograph is dynamic or depicts a certain story or emotions.

Furthermore, the Court pointed out the differences between a selfie and other portrait photos constituting a photographic work and an official photo, which will not receive copyright protection due to the need to comply with certain rules such as, for example, the requirement, cited by the Court, of an uncovered ear in evidence photos. On the other hand, if a photograph reflects the character or emotions of the person depicted, in particular if it shows someone’s smile or is characterised by a specially styled hairstyle, it must be considered to have a creative character.

Thus, the Court confirmed that there is no obstacle to the selfie being considered the subject of copyright.

Is it in any case not possible to use another’s selfie published by the author on a social networking site?

Another argument of the defendant was to justify the use of the plaintiff’s photos on the basis of the right of quotation in a prepared article, which, according to its claims, should be considered a separate work.

And yes, of course, it is possible to use someone else’s work under fair use. And since the prerequisite of the author’s consent did not occur in the case, the Warsaw court recognised the defendant’s argument concerning the possibility of using someone else’s photograph on the basis of the right of quotation.

Pursuant to Article 29 of PrAut:

‘it is permitted to quote, in works constituting an independent whole, excerpts from distributed works and distributed plastic works, photographic works or minor works in their entirety, to the extent justified by the purposes of the quotation, such as explanation, polemic, critical or scientific analysis, teaching or the rights of the genre of creation.

In this regard, the court pointed to the need to demonstrate the creative and individual nature of the juxtaposition of someone else’s photograph with a prepared journalistic text, thus contrasting the publication of a protected work with brief comments on the quoted photographs.

Thus, when assessing the use of someone else’s photograph (work) in a given article (other work), it is necessary to take into account (1) how the content of the article is presented and how the given issue from the article is illustrated by means of the photograph. If, in addition, (2) the article cannot be considered to have a creative and individual character and (3) its purpose was not to explain, polemicise, teach or the rights of the genre of creativity, then it is not reasonable to restrict someone else’s copyright under this exception.

On the issue of the rights of the genre of creation, the court pointed out that it is necessary to examine whether there is an accepted custom that justifies the use of another’s work. In the court’s view, the juxtaposition of a simple informative text with a photograph of someone else’s authorship does not contain the characteristics of articles, but is merely intended to make it more attractive. This means that it is not necessary to use a photograph illustrating it in order to create it.

On the other hand, the mere indication of the source of the photographs and the fact that they have been distributed by the author are simply among the premises entitling the use of a quotation, but they do not yet constitute an exception under fair use.

Does the right to publish an image of a public figure simultaneously entitle the use of any material in which that person appears

The case also raised the issue of whether the right to publish the image of a public figure simultaneously entitles one to use any material in which the public figure appears. As the Court pointed out, these are two different regulations, for the application of which different prerequisites must be met. The court confirmed that the act of a person with the status of being well-known making public his or her photographs on social networks does not constitute granting his or her consent to their use by other persons. And the mere possession of such status by a person does not deprive him or her of authorship for the works he or she performs, including the photographs in which he or she is depicted.

With regard to this strand, the court also indicated that it was, however, wrong to prohibit for the future the possibility of publishing works authored by the claimant without her consent. The court stated that such a prohibition could become a form of censorship and would unfairly restrict the defendant’s right to possible and legitimate use, e.g. of her photographs on the basis of permitted use in relation to other works subsequently created by her. On the other hand, additionally referring to Article 17 of PrAut, the Court added that such a prohibition already exists, since according to its wording, it is the author who is entitled to the exclusive right to use and dispose of the work in all fields of exploitation and to remuneration for the use of the work.

Based on the verdict of the Regional Court in Warsaw, XXII Intellectual Property Division of 1 February 2023, file ref. no. XXII GW 378/21, non-final judgment.

In addition, we can distinguish a number of grounds entitling press, radio and television organisations, educational institutions, universities, research institutes, libraries, museums, archives and state authorities to use other people’s works.

Author: Mariola Połeć, trainee lawyer