Must consent be obtained from persons, including minors, taking part in a sporting event, or can they be regarded as merely a detail of the event as a whole?

ANSWER

Under Article 81(2) of the Polish Copyright and Related Rights Act, consent/authorisation to disseminate a person's image is not required if the person constitutes merely a detail of a whole such as a gathering, landscape or public event.

In its judgment of 19 December 2001 (case ref. I ACa 957/01), the Court of Appeal in Kraków held: "the provision of Article 81(2)(2) of the Copyright Act dispenses with the requirement of authorisation to disseminate the image of a person who constitutes merely a detail of a whole such as a gathering, landscape or public event. This concerns the presentation of a place or event in which recognisable persons do appear, but the main content of the presentation is constructed by the place (e.g. a street or building) or the event (e.g. a demonstration or sporting event), and not the recognisable likeness of a person or persons; it is not the person but the place or event that constitutes the main subject of the content presented. For the application of Article 81(2)(2) of the Copyright Act, decisive importance lies in establishing, in the structure of the presentation, the relationship between the image of the person (or persons) and the other elements of its content; if the image of the person constitutes merely an incidental or accessory element of the presentation, i.e. if its removal would not change the subject and character of the presentation, dissemination does not require authorisation".

Bearing the above in mind, it should be stated that where photographs of a sporting event focus on presenting the event/place (without framing individual persons or small groups of persons), and participants in the event appear on them only as an incidental element that is in no way dominant, reliance may be placed on the exclusion indicated above under Article 81(2) of the Copyright Act.

It should however be borne in mind that where photographs are dominated by images of persons rather than by the presentation of the place/event, authorisation from the persons visible in the photographs is necessary for their dissemination.