Wiktoria Matysik for TVP3 Kraków Chronicle: Commentary regarding the photograph of Łukasz Litewka

In recent days, news has been circulating in the media about the calls made by the photographer – the creator of the photograph of the late MP Łukasz Litewka – to those who shared that photograph following his death.

This is a complex issue, and not just from a legal perspective. I am therefore all the more pleased that I was able to give a brief comment to TVP3 Kraków yesterday. Thank you very much for the opportunity to set out my position on this matter.

“In my view, given the still relatively low threshold for copyright protection (though perhaps this will change following the judgement in the Mio/konektra cases?), the photograph should probably be regarded as a work. Regardless of the photographer’s standing as a creator and whether she still holds the economic rights to the photograph, I believe that whilst a formal infringement may have occurred in this case, the context in which the photograph was used is not without significance. I find it difficult to imagine that, in the event of a hypothetical legal dispute, the author’s claims would be upheld, particularly with regard to economic copyright and the compensation sought. A potential line of defence could also be an allegation of abuse of rights. This is a defence used only in exceptional circumstances, but the circumstances of this case might justify such an exception.”