On 5 June 2019 the Supreme Court issued a notable judgment (File V CSK 238/19) concerning the rights to the work of a deceased artist and the alleged infringement of his moral copyright.
Józef Halas, a well-known Polish painter and professor at the Wroclaw Academy of Fine Arts, had been with friends with Ewa Kaszewska (the defendant) and her husband, who helped and cared for Józef Halas in his old age, including spending holidays together from the 1980s onwards (the artist's daughter lived overseas at this time). During this period, Józef Halas gifted the defendant and her husband his works with dedications, including notes on his family relationships, travels, adventures and the inspiration for some of his paintings and his thoughts on their creation.
In July 2014 with Józef Halas's consent (and after supplying materials and photos for publication) the defendant established an official website dedicated to his work. However, Józef Halas had previously said that he did not want some of his work exhibited in an online gallery. In addition, Józef Halas told the defendant that he wished to provide her with notes and comments on his art drafted throughout his adult life, which were key to interpreting his work, so that she could bring them to the attention of interested parties.
Following Józef Halas's death on 1 January 2015, he left a will which appointed his daughter (the claimant) as his sole heir. The will also granted the defendant and her husband the right of ownership of the notes and memoirs that Józef Halas had kept since 1959.
After Józef Halas's death, the claimant asked the defendant to change the title of her website from 'Józef Halas' to 'Kaszewska about Halas'. The claimant also demanded that the defendant immediately cease displaying her father's work online and compensate her for the damage caused by her infringing action. In her defence, the defendant explained that:
- Józef Halas's will had left her and her husband a collection of the artist's work and a rich archive of printed materials; and
- Józef Halas had given the defendant his express permission to establish his official website.
Unless transferred by contract, economic copyright may be inherited. Moral copyright is non-transferable or inheritable, but other persons may be entitled to bring an action for the protection of moral copyright and enforce the moral copyright of deceased artists.
According to Articles 78(2) and 78(3) of the Copyright Act (4 February 1994):
in absence of the author's specific will after his death, an action for the protection of the moral rights of the deceased may be brought by the author's spouse or, if there is none, by the following persons in the order they are listed: the descendants, parents, siblings, and descendants of sibling… [who] are authorised, in the same order of priority, to enforce the moral rights of the deceased author.
Under Article 16 of the Copyright Act, moral copyright protects the perpetual, inalienable and non-transferable link between artists and their work and, in particular, their right:
- of authorship;
- to put their name or pseudonym on a work, or to present their work anonymously;
- to protect the integrity of the content and form of their work, as well as its fair use;
- to decide when to communicate their work to the public for the first time; and
- to monitor the use of their work.
Although protection of the link between an artist and their work does not cease when they die, over time this protection concerns the public interest linked to the artist's cultural heritage.
The Supreme Court examined the defendant's alleged violation of Józef Halas's moral copyright and found that she had not infringed Józef Halas's right to communicate his work to the public for the first time by publishing it online after his death as she had been authorised to do so and owned the rights to the published work.
The court stated that there had been no infringement of:
- Józef Halas's right to the authorship of his work;
- the right to the integrity of the work and its identification with its author; and
- the right to monitor the use of Józef Halas's work.
Further, the defendant had complied with Józef Halas's wishes through the use of new technology to promote his work and had changed the name of the website at the complainant's request to 'Kaszewska about Halas'. In addition, Józef Halas had left a specific bequest to the defendant and her husband and had granted them ownership of his notes and materials.
The following additional circumstances were also relevant to the court's assessment:
- During his lifetime (in an implicit manner as evidenced by the close personal relationship between Józef Halas and the defendant), Józef Halas had authorised the defendant to publish fragments of his notes and memoirs (eg, a commemorative book had been published to mark his 85th birthday).
- It had not been proven that the artist was embarrassed or did not value the quality of his work and thus wanted to hide it from the public, a motive which could have justified the claimant's attempts to limit the defendant's actions.
- Literary, scientific and artistic work is generally created to be showcased to the public. There was nothing to suggest that the case in question should be any different.
- The defendant had had a close personal relationship with Józef Halas and his work for over 25 years and there were no grounds to suggest that she had infringed his copyright. Moreover, there was no evidence to suggest that, when preparing unpublished works for publication and disseminating them with Józef Halas's consent, the defendant had obtained any financial benefit.
The Supreme Court's decision underlines that it is difficult to limit the activities of people who have been gifted the work of an artist even after the artist's death, including its public display, especially in the case of a close personal relationship between the artist and the beneficiaries.
Following the death of an artist, close relatives can change the artist's will only in exceptional cases (ie, for political or moral reasons) if it can be shown that the artist would most probably have changed their previous will. However, in the above case such circumstances did not arise.
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