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26 October 2020
Jerzy Janiszewski is the author of the 'Solidarność' (ie, 'Solidarity') logotype used by the Independent and Self-Governing Trade Union Solidarność (NSZZ Solidarność), which was founded in 1980.
In response to the COVID-19 pandemic, the artist published on his social media profile a modified version of the logotype with expanded spacing between the letters and additional inscriptions:
These slogans, given the current health emergency and recommendations from global medical practitioners, seem to call for people to maintain social distancing in order to avoid the further spread of COVID-19.
Regardless of the artist's intended message, this publication did not please the trade union, which sent the artist a letter demanding a public apology for his actions and ordering him to cease infringing its rights. The trade union referred to the agreement on the transfer of the author's economic copyrights, which is binding on the parties.
The artist reacted immediately to NSZZ Solidarność's demands and emphasised that the sign 'Solidarity – keep distance' is a derivative of his original work (ie, the Solidarity logo). The author's right to exercise his derivative rights – namely, the right to use and dispose of the rights to a modified (derivative) work – is not limited in any way by the concluded agreement. Further, the artist may not only exercise these rights himself, but may also allow third parties to exercise these rights, for which he does not need the trade union's consent.
Therefore, there was no legal basis for the demands raised; in fact, it is the trade union which needs the author's consent to use the modified logo in any manner other than the use of derivative rights relating to the trade union's statutory and internal activity permitted in the agreement.
In general, the copyrights to a work consists of economic copyrights and the author's personal rights.
An author's personal rights protect a link between an author and their work (eg, the right to be disclosed as the author of the work or to decide when to communicate it to the public for the first time). An author's personal rights are not transferable, although it is common practice to obtain an author's statement or undertaking not to exercise their rights.
On the other hand, economic copyrights give an author the exclusive right to use or dispose of a work in all fields of use and to receive remuneration for the use of the work. Authors may transfer economic copyrights to other individuals in the same way as any other property.
These forms of copyright do not include the right to modify or adapt an original work (a derivative right), which forms an independent subject of copyright protection, notwithstanding the rights in the original work. The use and disposition of a derivative work is subject to the permission of the author of the original work. Thus, if parties do not include in the agreement a separate acquisition of the exclusive right to exercise and permit the exercise of derivative rights, except the acquired economic rights to the work, a party may not fully and completely exploit the copyrights to the work.
Therefore, it seems that the artist's argument is justified if he did not transfer his exclusive right to permit the exercise of derivative rights, as he alleges. The artist's explanations were apparently effective, as he has not removed the modified logotype from his social media platform and the matter seems to have come to a halt with no further comment by either party.
This case is important because it illustrates a common situation where acquirers of an author's economic copyrights are convinced that they have exclusive rights to all forms of use and modification of the work without the need to obtain the author's consent. However, the reality is that in addition to the transfer of an author's economic copyrights, agreements should also cover the possibility of making changes and using the modified works.
For further information on this topic please contact Szymon Gogulski or Jacek Zwara at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email (email@example.com or firstname.lastname@example.org). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.
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