Legal Eye: Fair use of your face
Fortunately, my mild mannered life as an attorney has never required that I cultivate a new and improved image or to take any special measures to protect it. And frankly, unless I start defending high-profile criminal cases or am appointed to negotiate a solution to the next international crisis, few will care what I look like on a bad-hair day.
If I were to do either of these things, however, I would risk becoming a well-known person and losing some of my privacy rights over my image. Tucked in the back pages (Art. 81) of the Law on Copyright and Neighboring Rights (Copyright Law) is a provision on protection of rights to your own image and several fair-use exceptions.
The rule on protection is straight-forward: use, whether in a newspaper, on a web-site, on TV, in an advertisement, of your picture requires your consent.
The fair-use exceptions attempt to balance your privacy rights to your image with the rights of others. As mentioned earlier, one of the exceptions concerns well-known persons. The Copyright Law does not define the term 'well-known'. It is safe to assume that being known and loved by friends and family does not make you a 'well-known' person in the larger sense. To qualify, some group of complete strangers would need to know your name and take an interest in you.
If you qualify as a well-known person, a picture of you performing a public function, in particular in a political, societal or professional role, is fair game. In other words, use of pictures of politicians making speeches or kissing babies at a party rally doesn't require consent. Pictures of film stars wearing their finery at opening events also fall under the fair-use exception. To the chagrin of image-makers, the less attractive images of their proteges making blunders at public events can also qualify.
Although not derived from the Copyright Law itself, a corollary to this exception holds that the image may only be used in discussing/reporting about the person. If you decide to publish a calendar depicting each month one of the candidates in the current presidential election, you need to obtain consent.
Another fair use exception relates to pictures in which a person is only a detail in a larger composition. Let's say the city of Warsaw takes a picture of Nowy Świat while I happen to be walking down that street. If the city of Warsaw then posts this picture on its website as a view of Nowy Świat, it is fair use, as long as my image is just a minor part of the overall picture. If, however, the city of Warsaw decides to make a close-up of me or put a caption under the photo along the lines of "Judith Gliniecki, renowned attorney, taking a stroll on one of Warsaw's most beautiful streets," we need to talk.
Judith Gliniecki is the managing partner of Rymar and Partners.
