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23 May 2016
The Krakow Regional Court recently delivered an important judgment regarding the admissibility of using the SOLIDARITY sign in artistic activity. The figurative sign, which represents Polish trade union Niezależny Samorządny Związek Zawodowy „Solidarność" (Solidarity), comprises the word "Solidarność" ("solidarity"), red graphics and the Polish national flag. It gained international recognition due to the crucial role that Solidarity played in the Polish transition to democracy. The court decided that the unauthorised use of this sign by singer Czeslaw Mozil in the music video for the song "Nienawidzę Cię, Polsko" ("I hate you, Poland") did not infringe Solidarity's copyrights or harm its interests and reputation.
The music video for Mozil's 2014 song "I hate you, Poland" featured an actor wearing a vest with badges containing symbols widely associated with Poland, including the SOLIDARITY sign. The song described the present dilemmas of Polish emigrants and illustrated the problems resulting from their difficult political and economic situation.
The use of the SOLIDARITY sign in a music video with such a provocative title was questioned by Solidarity, which sued Mozil for copyright infringement. Solidarity also claimed a violation of its interests, as it believed that the music video harmed its reputation.
The court dismissed Solidarity's claims regarding copyright infringement, as in this case the use of the SOLIDARITY sign was permitted under the right to use quotations. Polish law explicitly allows the quotation of already disseminated graphic, photographic or minor works within the scope permitted. In this case, the court decided that the right to use the SOLIDARITY sign as a symbol of Poland was justified by the nature and purpose of the music video.
The court did not question the fact that the author of the SOLIDARITY sign was not indicated in the video. Although under Polish law each quotation should include an indication of the source and the name of the author, this requirement should be adjusted to the facts of the case and the existing options for providing it. The courts have already decided that this obligation is not mandatory in certain cases – that is, where it is not consistent with the character and scope of the quotation. The SOLIDARITY sign in Mozil's music video is not clearly displayed and the scope of its use is relatively narrow: it features a few times for a few seconds. Therefore, the indication of the source and author was not required.
Solidarity also claimed that by using a sign that is commonly associated with its activities, Mozil had infringed its interests and reputation. The court thus analysed whether the music video could be considered as insulting to Solidarity or its activities.
The court ruled that the SOLIDARITY sign in the video was not used as a reference to the trade union's activities but rather as one of the commonly known symbols of Poland. The court confirmed that even though rights to the SOLIDARITY sign are owned by Solidarity, it also serves as a symbol of Poland which does not have to be directly associated with the trade union. Therefore, since there is no reference to Solidarity's activities in the music video, its reputation could not have been harmed.
The court also noted that despite its controversial title, the music video should not be considered as detrimental to Poland's reputation, since its focus was primarily on the problems of Polish emigrants and their longing for their homeland. The court thus concluded that Mozil's video did not constitute an infringement of Solidarity's interests.
The judgment is not final and may be appealed by Solidarity. Nevertheless, it should be regarded as an important addition to the discussion of the relationship between proprietary rights, the right to quote and freedom of speech. The judgment confirmed that a certain degree of provocation in the title of a creative work is allowed, especially when it is meant to attract public attention to the message conveyed by the artist. Similar cases should be thoroughly examined, as taking into account only one aspect of the case (eg, the title of a song) may lead to an incorrect conclusion.
For further information on this topic please contact Szymon Gogulski or Mikolaj Skowronek at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email (firstname.lastname@example.org or email@example.com). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.
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