Infringement of personal rights in the alcoholic beverage industry
Commercial exploitation of the attributes of well-known, admired or distinguished persons can bring a product positive associations, build recognition, and reinforce popularity. It is a guarantee of the highest quality and reliable origin. Names and images of long-dead historical figures in particular are often found on labels and in ads for alcoholic beverages. Sobieski, Chrobry, Poniatowski, Jagiełło, Kazimierz Wielki and Pułaski gaze at tipplers from bars and store shelves, along with Chopin, Ogiński and Amundsen. Can the use of attributes of a third party, including someone who is no longer alive, constitute an infringement of personal rights, and if so, whose? And what are the legal consequences? The answers are not always obvious.
The rule is that personal rights are an attribute of every individual, and closely tied to the person. The rights protecting them are moral (non-proprietary), and cannot be sold or bequeathed. They expire with the death of the holder. Consequently, as a rule, only a living holder can demand protection against infringement (or threatened infringement) of personal rights pursuant to the Polish Civil Code. Does this mean that personal rights of deceased persons are not subject to protection and thus they can be freely exploited commercially? Not necessarily.
Some personal rights associated with a deceased person are held by the person’s family members, who may protest against infringements, including exploitation of the decedent’s attributes for commercial purposes. For example, a complaint against the use of the name Chopin as a vodka brand was filed with the Ombudsman in 1996 by Krystyna Gołębiowska, the great-great-granddaughter of the composer’s sister, Ludwika Jędrzejewiczowa. Litigation was commenced in the courts against the owners of the Żywiec brewery by Habsburgs descended from the brewery’s founders to protect the personal rights of themselves and their ancestors. Similar disputes with producers of vodka and beer have been initiated by members of the Lubomirski and Potocki noble families.
Memory and devotion
Remembrance of a deceased loved one has been recognised in Poland as a personal right since the 1960s. Protection extends to family members’ memory of the decedent, including being able to remember the decedent as a good and decent person. It thus protects the dignity, honour and privacy of the deceased. It may be said that the honour of a deceased person is indirectly protected through cultivation of the person’s memory as a personal right of surviving relatives. These persons have legal means at their disposal to protect against actions injurious to the honour of the decedent and causing the survivors a sense of injury.
It is easy to imagine examples of violation of the honour of a decedent (e.g. to say that the person committed plagiarism or was a thief). It might seem that in the alcoholic beverages industry it would be hard to find such an obvious example. But we can cite the unfortunate ad for Extra Żytnia vodka published on a social media site in 2015. It used a photo by Krzysztof Raczkowiak (www.lubin82.pl) of men carrying the mortally wounded Michał Adamowicz, taken in August 1982 during civil unrest in the Polish city of Lubin, when the militia put down a protest by Lubin residents. The image bore the caption “The Hangover? Screenplay by Żytnia” with the comment, “When your stag party gets out of hand, is it Żytnia’s fault ;)?” Presenting a living person in that light would infringe his personal rights. After the person’s death, it infringes the survivors’ remembrance of the decedent. Interestingly, the fact that Adamowicz was a member of the democratic opposition protesting against the authoritarian communist regime does not mean that his honour and the remembrance protecting it deserve greater protection than that of an anonymous person or even someone who did not enjoy an impeccable reputation when alive. Protection of the remembrance of a decedent is no broader because the decedent enjoyed greater respect or had displayed greater merit during his lifetime (Supreme Court of Poland judgment of 23 September 2009, Case I CSK 346/08). In Polish culture, human dignity is considered deserving of strong protection after the person’s death, and in itself is raised to the level of sanctity.
What about the more typical examples of commercialisation of someone else’s name or image, using them in the name of a product or advertising?
Surname
It can hardly be accepted that a surname can be infringed only when it is used in a context derogatory or degrading to a person. The mere commercial use of the name without the holder’s consent, even for top-shelf, expensive, luxury spirits, could be found to be an infringement of personal rights. Ultimately the finding will depend on the context in which the name is used—the type of message, the product it is tied to, and accompanying text. If the surrounding circumstances are derogatory to the claimants or present them in a negative light, it cannot be ruled out that there is also an infringement of other personal rights as well, such as privacy or dignity.
When we see our own surname on a bottle of spirits, we can object by proving two things: first, that we bear the same surname; second, that we will be clearly associated with the designation and there are objective reasons that the association will infringe our interests. But the fact that we incidentally share the surname of a famous person will not suffice to enforce legal protection of our surname.
And not every commercial use of a surname will be found to be an infringement of the personal rights of a deceased ancestor—whether the surname itself or the memory of the decedent. Use of the name will not be an infringement if it is informational in nature, as the Supreme Court recognised in the case involving the Żywiec brewery (judgment of 28 February 2003, Case V CKN 308/02). There it was held that use of the name of the claimants’ Habsburg ancestors in a description of historical facts (in a stock prospectus, press release, brochure, and advertising) to stress their role, particularly their positive contribution to building the enterprise, does not infringe the claimants’ personal rights—neither their surname nor the memory of their ancestors. Nor was it an abuse to use the date when the Habsburgs founded the brewery—which, the court held, is a part of history. The court took the same view of the use of a highly stylised crown, which supposedly alluded to the crown once belonging to the Habsburgs, as the plaintiffs could not prove that the crown depicted would be associated by the public with the family’s crown.
Family tradition
But let’s take it one step further. What if a producer of alcoholic beverages uses the first name, last name, or other identifying details of a famous dead person, and a living relative from the same family, with the same surname, argues that this violates the claimant’s special sense of a connection with the deceased and his or her accomplishments? It cannot be ruled out that the claimant could then show an infringement of the rights referred to by the Supreme Court in the Habsburg/Żywiec case as family tradition. Such tradition, in the sense of heritage, patrimony, and identity with the achievements and values represented by the claimant’s ancestors, is a form of personal right. Typically, it will be associated with the ancestor’s efforts connected with patriotism, the struggle for independence, culture or art. It is essential in this regard to cite specific attributes of the tradition of the family in question. In the Habsburg case, the claimants narrowed their personal right to the commercial activity of a specific enterprise, but did not demonstrate any violation of its attributes (name, crown, date). Nonetheless, it cannot be excluded that reliance on the broader tradition of a specific family and its cultivation could suffice to obtain a ban on the use of an ancestor’s name.
Family arms
An entirely different ruling was issued with respect to the family coat of arms of the Habsburgs used on beer coasters. The court held that a family’s arms constitute a personal right even though they have ceased to carry any legal meaning in public life (Katowice Court of Appeal judgment of 10 April 2002, Case I ACa 1399/01). Use of the arms by another person is an infringement justifying legal protection for the rightful holder. In that case the court ultimately enjoined the brewery from using the Habsburg coat of arms, but it was the only injunctive relief the claimants succeeded in winning.
Image
The image of a person is protected not only under the Civil Code, but also under the Act on Copyright and Related Rights. It is accepted that the Copyright Act protects image in a narrower sense, i.e. the concrete image of a person requiring the person’s consent for dissemination. Copyright also allows claims to be pursued for unlawful dissemination of an image after the death of the person represented. If the claimant elects to base the claim on copyright, the infringer can be saved only by the consent of the holder to use of the image. It should be borne in mind that unlawful use of a name or image does not mean only use without the holder’s consent, but also failure to comply with the conditions for consent (e.g. time, scope and territory of use).
When electing to seek protection under the Civil Code, a person whose image has been used without consent for commercial purposes must prove an infringement, and the infringer must prove that it did not act unlawfully.
Duration of protection of personal interests connected with a decedent
A key question is how long after a person’s death should the personal rights associated with the decedent be protected? With one exception, the regulations do not answer this question. But reason and intuition dictate that such protection cannot be unlimited in time, and the less time has passed since the person’s death, the strong and broader the protection should be.
It is accepted that the duration of protection connected with purely personal rights, i.e. the remembrance of family members, should run concurrently with the lifespan of the family members, typically no longer than 100 years. With respect to purely proprietary interests, e.g. exploitation of the renown of a historic figure, it is suggested by analogy to copyright law that protection should last no longer than 70 years after the person’s death. It does not appear justified, however, to apply any uniform and rigid definition of these time frames. The decision on whether legal protection should be afforded must be taken depending on the circumstances of the specific case. The court’s task is to determine whose interests deserve protection in the given case. Nonetheless, it appears highly unlikely that the use as a brand for alcoholic beverages or in advertising of such names as Mieszko (early Polish ruler, 930–992), Jagiellonka (Anna Jagiellon, Queen of Poland and Grand Duchess of Lithuania, 1523–1596) or Jan Kochanowski (poet, 1530–1584) would be held by a court today to be an infringement, purely due to the time that has passed since the death of those figures.
Copyright law contains a special rule on claims connected with infringement of an image. There, claims cannot be pursued more than 20 years after the death of the person depicted. It is accepted that this provision establishes an expiration date for protection of an image. Nonetheless, this does not exclude pursuing claims after that time for protection of other rights infringed by the use of the image, e.g. the memory of the deceased.
Chopin stands alone
The Polish legal system includes an exceptional law that departs from the general regulations on protection of personal rights connected with deceased persons: the Act on Protection of the Heritage of Fryderyk Chopin of 3 February 2001. The Polish composer is the only historical figure who has merited protection in this country under his own separate statute.
Chopin and his works are a symbol of what it means to be Polish, and a national (or cultural) treasure which has been extensively exploited commercially by both Polish and foreign enterprises. His name, likeness and works were used often in the branding and promotion of a wide range of goods, particularly in the 1990s. Among other reasons, it was to combat such abuses that this special law was adopted.
Under that act, the works of Chopin and items connected with him constitute an interest held by the Polish nation as a whole and subject to special protection. His name and likeness are protected “under the rules applicable to personal rights.” Custody of these rights is vested in the Minister of Culture and National Heritage, with exercise entrusted to the Fryderyk Chopin Institute established by the act. Thus it is the institute that pursues measures to protect Chopin’s name and image. The name “Chopin” may be used only in a manner that does not bring discredit to the heritage of Fryderyk Chopin, and associated only with ventures of the highest quality within the broad sphere of culture. Nonetheless, the act does not exclude the commercial use of the Chopin name for “exclusive products or services.” The institute itself is the owner of two EU trademarks for “Chopin,” registered for goods and services in 43 classes (but not alcoholic beverages), and is authorised to grant consent to use of the trademark, among other ways in the form of a 5-year exclusive licence.
Notwithstanding the laudable ends for which the act was adopted, it is criticised as hard to square with the principles of protection of personal rights. Chopin’s personal rights unconnected to his works, such as his name and likeness, as well as the rights protecting them, were extinguished upon his death in 1849. This special act in some sense restored these rights to life by providing for their indefinite protection. This approach is also contrary to the already established principle of protection of the remembrance of a decedent, vested in the decedent’s family members.
In practice, the name and likeness of Chopin are still used widely for commercial purposes, including in the spirits industry. Chopin Vodka is the flagship product of Polmos Siedlce, which uses the composer’s name and likeness in its business along with a number of registered trademarks.
After infringement—financial claims
We undoubtedly live in an age of widespread commercialisation of various personal rights, particularly names and likenesses. They can have tangible (and often remarkably high) market value, as reflected in advertising deals by celebrities. Suffice it to say that licences to use their names and likenesses for promotion of vodka in Poland have been granted by such figures as American actor Bruce Willis, Polish actor Bogusław Linda, and Polish footballer Artur Boruc. Indeed, rankings of figures are published based solely on the criterion of their advertising value.
The Polish courts have also taken note of this phenomenon. In Gortat v Sfinks (judgment of the Warsaw Court of Appeal of 29 July 2014, Case VI ACa 1657/13), involving the Polish NBA basketball player Marcin Gortat, the court held that in the case of infringement of a person’s image, an award can be issued requiring the infringer to disgorge benefits obtained from the infringement. The reasoning was that in such case, the infringer has saved the fee it would have had to pay to the holder to make lawful use of his name and likeness. Similar rulings might also be handed down in the event of infringement of other personal rights bearing market value.
Summary
There is no categorical answer to the question of whether the use of attributes of a famous or historic figure for branding and promotion of alcoholic beverages will infringe anyone’s personal rights. This danger appears remote if a long time has passed since the person’s death (the customary limit appears to be 100 years in most cases, or 20 years for an image). It cannot be ruled out, however, that the family members of such persons will assert claims for protection of their own personal interests—their surname, remembrance of the decedent, a coat of arms, or family tradition.
It is the task of the court to determine case by case whether the interests pursued merit protection. The court will consider not only the claimants’ subjective feelings, but first and foremost objective criteria involving societal mores and customs. If unauthorised commercial exploitation is found to infringe the personal rights of another, the relief awarded to the claimant may include, depending on the circumstances of the case, compensation for moral injury, redress of loss, and disgorgement of benefits wrongfully gained by the infringer.
Dominika Kwiatkiewicz-Trzaskowska, legal adviser, Intellectual Property practice, Wardyński & Partners
