Genowefa Pigwa, a Working Woman, An!ela, or a Few Words About the Right of Publicity

The media are discussing the latest Netflix production, the An!ela series, whose main characters are modelled on real people from the online, artistic and legal worlds.

Attention is drawn to the character of Oliwa Przegryw, whom Internet users immediately recognised as the ‘meme persona’ created by the well-known Polish influencer Żabiara, who runs an Instagram account called frogshoposting.

Oliwka from the series, like Żabiara, works/has worked in a local store, and in her free time she runs a popular Instagram account about loser culture. Oliwka, just like Żabiara, is a young woman with a great sense of humour who is intelligent and brilliant. Similarities can be also spotted in her appearance: like Żabiara, Oliwka wears a distinctive hairstyle: her pink hair, with the roots showing, is tied at the top of her head, and she is dressed in a characteristic green fleece. Internet users also pointed out that the name of the serial character is an anagram of the influencer’s name (Wiola – Oliwa).

The influencer herself joined the discussion, informing the public that a few years before the series aired, she had talked to one of the show creators about a possible collaboration on a character inspired by Żabiara. The talks ended there.

There are quite a few similarities, though. This raises the question whether the character Oliwka Przegryw (or Looser in English) violates Żabiara’s rights. Or maybe the serial character is just a legitimate inspiration?

Using this case as an example, we will look at two court decisions concerning similar situations from the past, and finally, we will provide a few legal considerations on what one’s image actually is and when it is subject to protection.

Image in caricature form. Genowefa Pigwa on beer labels

In a well-known case from the 1990s, an artist who was renowned for portraying Genowefa Pigwa (a woman from a fictional village in the countryside dressed in a distinctive  apron and headscarf), objected to the image he had created being used on beer and home-brew labels, as well as other food products.

The defendants (including the Zakłady Piwowarskie brewery) argued that the label design was not related to the artist in any way but only depicted a woman wearing a folk costume from the Świętokrzyskie region. 

The court found that the defendant had used a caricature image of the claimant’s stage persona on beer labels and ruled that this was unlawful. According to the court, the elements of the labels allowed for straightforward identification of the artist. The grounds for the decision reads: “as for the appearance of the claimant, who portrays the Genowefa Pigwa character he had created himself, the costume typical of the Świętokrzyskie region and the headscarf, as presented on the labels, are distinctive.”

As a consequence, the court ordered the defendant to stop using Genowefa Pigwa’s real or caricature image on beer packaging (decision of the Court of Appeal in Kraków of 7 February 1995, Ref. No. I ACr 697/94).

Working woman in mobile network commercials

In 2009, one of the mobile networks used in its commercials the image of a ‘resourceful woman’, portrayed as performing various professions (of a detective, confectioner, snake tamer or office employee), and always willing to help. In all the commercials, this character was played by the same actress. In some of them, two characteristic phrases were used: ‘to pani?’ (is that you?) and ‘Jestem kobieta pracująca’ (I’m a working woman).

The writers of the popular Czterdziestolatek series filed a lawsuit against the mobile network, accusing them of violating the author’s economic rights to the series script by unlawfully using the ‘working woman’ motif in the commercials without acknowledging the claimants’ authorship.

The screenwriters pointed out that the working woman, played by one actress in the series, in each episode performed a different profession. To the question ‘Oh (…) is this you?’ asked by her interlocutors surprised by the job she was doing at the time, she answered: ‘I’m a working woman. I’m not afraid of any work’ (Żadnej pracy się nie boję).

The court found that on average the audience of the commercials would associate the main character portrayed in them with the working woman from the TV series. However, it stated that this did not constitute a violation of the scriptwriters’ rights since the commercials used only the general idea of creating a character who was a helpful and resourceful woman performing various professions, and the idea was not protected by law. According to the court, the authors of the commercials had developed a completely new character that shared only a few features with the one from the TV series, and therefore no appropriation of the entire character occurred.

In this case, we are talking about an inspired work, i.e. the one that is created as a result of the creative excitement with the working woman character presented in the series. As a consequence, the court ruled against the scriptwriters and dismissed the claim (judgement of the Supreme Court of 10 July 2014. I CSK 539/13)

What is one’s image and the right of publicity?

The image has not yet been given its official, statutory definition. According to the doctrine: one’s image means an intangible product, which by means of artistic means presents a recognizable likeness of a person (or persons). In addition to classic painting portraits, these are also photographs and caricatures[1].

One’s image may also be a so-called artistic mask, provided that such mask allows the person hiding behind it to be identified, even though it is used to present a fictional or stage character.

One’s image is therefore a set of human features that are distinctive enough to identify a specific natural person.[2] It is not limited only to the person’s appearance presented as it is (photographic reproduction). It may be sufficient to present and specify this appearance if a specific person can be identified on the basis of it. For example, the identification may take place through the situational context in which the person’s likeness is presented. [3]

As a rule, the dissemination of the image requires consent. However, such consent is not required if:

• posing takes place in exchange for payment;
• the image is only an element of the whole, for instance a photo of a crowd going wild at the Polish rapper Mata’s concert;
• in the case of well-known persons, but only if the image was created in connection with the performance of public functions.

And who are such well-known persons? These are people who are recognised for their activities, e.g. social, scientific, political, literary or artistic work. It is important to note that, while public figures benefit from limited image protection in the context of their professional activity, their image is still protected in the private sphere. As a consequence, its use may require consent.

In addition to answering the question whether the image was used in connection with the performance of public functions, it is also necessary to consider the intended audience of the publication. If the image is to be disseminated in circles and communities where the person will not be considered well-known, their consent will be necessary[4].

For the use of someone’s image to be legal without their consent, this use must be justified in a way.[5] In such a situation, it is necessary to establish what essential interests would underpin such an action. The prevailing opinion in the jurisprudence and doctrine is that the dissemination of the image of a given person, even a public figure, for profit only, requires their consent.

Effects of using a person’s image without their consent

A person whose right of publicity has been violated may demand not only an end to further dissemination of their image and the removal of the effects of the violation (for example through a public apology or the deletion of a photo from the internet). They may also require the damage caused to be redressed and any benefits obtained by someone through the unlawful use of their image to be returned.

The line between the right to protect one’s right of publicity and other values protected by law, such as artistic creation or freedom of speech, is not clearly defined. Every situation should be assessed individually, while taking into account all circumstances, including those that are often not known to the public. However, as a rule, the dissemination of someone’s image requires their consent. However, if the publication took place by way of exception provided for by law, the burden of proof rests on the person or entity that made such publication.

[1] J. Barta, R. Markiewicz, In: Barta, Markiewicz, Komentarz PrAut, 2001, p. 533

[2] A. Niewęgłowski [in:] Prawo autorskie. Komentarz, Warsaw 2021, art. 81.

[3] Judgment of the Court of Appeal in Warsaw of 9 March 2018., VI ACa 1694/16, LEX No. 2524902.

[4] Judgment of the Court of Appeal in Szczecin of 26 May 2020., I ACa 13/20, OSASz 2020, No. 4, item 84-142.

[5] Judgement of the Administrative Court in Warsaw of 30 December 2019, I ACa 165/19, LEX No. 2772918.