None of us can imagine living without the Internet anymore. Thanks to it, people can easily communicate with each other, express opinions about the surrounding reality, and present their creativity. An example of the latest form of digital creation is the so-called Internet memes.
Memes, i.e. interesting photographs, pictures, film frames (as a visual layer), to which are added verbal, graphic, or graphic commentary (as a verbal complement to the work used) are used to express sentences about current politics, culture and society. Can you ask yourself, is such an online creation entirely legal? If not, what possible violations and how can they run?
Internet Memes and Image Protection
Internet users, generating memes from photos found on the Internet (for example from various celebrations or mass events), only frame a specific character, adding a mocking description to it. Usually such a person does not even know that he is an element of the meme and what is worse (or not) that he became a recognizable so-called Internet hit. This type of memes is an ideal example of the use and dissemination of another's image.
Image is a set of characteristic, physical characteristics of a man, making up his appearance, so immanently related to him that he can be easily recognized. In the judgment dated 28 May 2015, And ACa 158/15 The Court of Appeals in Krakow added that by this concept it is also necessary to understand every likeness of a person, regardless of the technique of its execution, namely photography, drawing, cutout of a figure, film, television, or video message, as well as undoubtedly a photograph.
The protection of the image was regulated by Polish law on the basis of Article 23 The Civil Code (hereinafter c.c.) and its lex specialis – Article 81 Copyrights and Related Rights Act (hereinafter: pr. auto).
According to the disposition section 1 the last of the above mentioned provisions, the dissemination of the image requires the authorisation of the person in it. In the absence of an explicit reservation, the permit shall not be required if the person has received the agreed payment for the pose.
Use and dissemination of image
It is extremely important for the interpretation of the admissibility of the use of another's image in the meme to attempt to define the concept of disseminating the image. If the meme's use of someone else's picture containing an image is limited only to private fun and meme is known only to its creator, then there is no cause for concern. However, possible violations may occur when such meme is distributed.
At this point it should be clarified that according to Article 6(3) The distribution of cars is to make the work publicly available in any way. Supreme Court in judgment dated 27 September 2013, I CSK 739/12 stressed that this was a situation where the possibility of getting to know the image of an indefinite, unclosed circle of people was created.
Having regard to the above, any publication of a meme in a service type demotywatory.pl is kwejk.pl should be regarded as disseminating the image. Therefore, the best way to avoid the responsibility for illegal dissemination of someone's image is to get the author's prior consent of the person from the photo used in the memo.
Undoubtedly, reaching out to a stranger and receiving his permission may be a difficult or often impossible task. The safest thing to do in such a situation is to give up the distribution of a particular meme. Otherwise, you can be exposed to court proceedings at any time, for, colloquially, nothing is lost on the Internet.
Legal Internet Memes
However, the obligation to obtain consent to use the image in the meme is not absolute. As a rule, they exist two exceptions worth looking at.
first, of which Article 81(2)(1) car, concerns so-called well-known people. The catalog of such people is very large.
This group includes both those who have public functions and those who do not perform them, but who play significant roles in various areas of public life, such as politics, social life, culture, art, sport, and among them – active in these latter areas, with great interest in the public and media artists, entertainment stars, athletes.
Interestingly, in the judgment dated 2 September 2010, And ACa 620/10 The Provincial Administrative Court has stated that the average man can also become a public person when he becomes the perpetrator of a particular event and his action is properly publicised.
However, to update this exception, it is not enough to use a photograph containing the image of a person commonly known. The lack of the obligation to obtain an authorisation to distribute the image occurs only when the image of the person commonly known in the memo was performed in connection with the performance of public functions (i.e. political, social, professional, etc.), and the use of such image is related to the presentation (relationship) of the performed functions.
Placed next to the meme is fully legal. I guess it's easy to figure out whose image was used in it. It is a well-known person – an athlete, and the photo used in meme was taken during the match, to capture and report its course.
However, if the meme element was a photograph of a private footballer's life, it would have to be considered whether his right to image was violated.
In addition, whether the commentary on such a photograph and the specific summary of the photograph and description is not, for example, slander and does not lead to direct violation of other personal property, either, according to the Civil Code.
The fact that court proceedings concerning infringements of personal property memes, including image rights, are rare does not mean that there is a general authorisation to publish offensive memes.
second except where the need to obtain consent for the dissemination of another's image is excluded, in accordance with Article. Article 81(2)(2) There is a situation where the image of persons, which is only a detail of the whole, is widespread, i.e. gathering, landscape, public event.
The cladding, approximation, as well as other shots that allow the photograph to extract a specific person from the crowd, in such a way that it can be easily identified, do not allow to apply the above mentioned exception.
However, every case should be considered in casum, as in specific circumstances it may appear that an assessment should be made in a way different from the above.
Illegal Internet Memes
The memento work has its limits. A person whose right to an image, but also other personal property, e.g. name or honour, has suffered a violation by spreading the mem, may obtain his rights on the basis of Article 24 k.c. According to that provision, the person whose personal welfare has been infringed may require that the person who committed the infringement complete the activities needed to remedy its effects, in particular that he or she make a statement of the appropriate content and form.
In addition, if such a person has suffered harm as a result of the publication of a mema, he or she may request an appropriate sum for payment of a monetary compensation or demand payment of an appropriate sum for his or her social purpose, irrespective of any other means needed to remedy the consequences of the infringement (Article 448 k.c.).
These regulations shall not prejudice the rights of the person whose law has been infringed, provided for in other legislation, in particular copyright and criminal law.
In summing up, however, it can be concluded that online creativity in all its spontaneity should fit within the framework outlined by its legislator. Otherwise, instead of playing, it will be a source of unpleasant court adventures.