Could the use of the famous Solidarity wordmark in the “Nienawidzę Cię Polsko” (I hate you, Poland) music video infringe the goodwill of the Union and its copyright? The chairman of Solidarity, Mr. Piotr Duda filed a complaint against Czesław Mozil, the author and the performer of the song. In the music video for the song, the wordmark of Solidarity appeared in the form of a plaque decorating the jacket of one of the spot’s characters, and next to the Polish emblem and a plaque with the image of Pope John Paul II. When announcing the filling of the lawsuit in this case, the Solidarity representatives pointed out that they do not relate to the artistic value of the work itself, but to to use of the Union’s wordmark itself without consent, considering such action as the Union’s “property infringement” and “simple theft”. It is significant that in the initial statements on this matter the Union representatives pointed out that their claims are limited exclusively to the lack of permission to use the wordmark in the music video. At thee court proceedings, however, the Union also submitted a claim for the protection of their reputation in the form of goodwill.

In the ruling on Friday (April 8th, 2016) the District Court in Cracow however dismissed the Union’s claims. We do not know the written reasons for the ruling, although we believe it is corre ct Looking at the video it is difficult to recognize that the inclusion of the Solidarity wordmark infringed the Union’s copyright and also had a negative impact on its goodwill.

Freedom of artistic creativity vs copyright

Undoubtedly, we are dealing here with the conflict between freedom and artistic creativity, protected by the Constitution (article 73), and a different constitutional principle – the protection of property rights and other property rights (article 64) – the copyrightin this case.

The clue for solving this conflict is provided in the very act on copyright, which allows the use of copyrighted material for a work without the permission from its author. In accordance with this provision, it is allowed to quote in works constituting an independent work whole fragments of disseminated works and disseminated artistic pieces, photographs, or minor works in whole, to the extent justified by the objectives of the quotation, such as explication, polemics, critical or scientific analysis, teaching, or the principles of the works’ genre. For such use the creator is not entitled to remuneration. The provisions of the act impose an obligation of providing the name and the surname of the author of the cited work and the source from which the work comes from. In the case of the Solidarity wordmark, undoubtedly we can talk about a work subject to copyright protection. The analysis of the use of the wordmark in the music video leads to the conclusion that all the conditions for the right of quotation have been fulfilled. First, the Solidarity wordmark can be regarded as an artistic work or a minor work. Second, it has been used in another piece of art (a premise for use – the right of artistic work genre). If it comes to the obligation to citethe author of the quoted work and provide its source, it should be remembered that this obligation is not absolute. As article 34 of the act indicates, provision of this information should “take into account the feasibility”. Of course, in the case of music videos the inclusion of such information would be rather difficult. Therefore, it seems like their omission will not constitute an infringement towards the limits of the right to quote.

Freedom of artistic creativity vs goodwill

As to the second of the allegations raised by the Union, the analysis of the video and the context in which the logo is presented in it does not support the conclusion that we are dealing here with an action offensive to the Union and which presents it in a negative light. The wordmark appears in the spot only as one of the badges in the in the spot’s main character’s lapel, which may symbolize Poland. Even if accompanied by controversial words: “I hate you, Poland”, they have a perverse meaning. They are rather a bitter reflection and an expression of longing the country by an emigrant, rather than anti-Polish message constituting a slight to the Solidarity reputation.

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The court ruling is not final. Press reports do not indicate if the Association is going to appeal in this case. We will announce on the blog further developments of this case.

And here’s a link to the disputed video: