J. Cholajda: Can a photographer’s work be included in a passport even if he or she did not give consent?

A few words about the Syrian case and its hypothetical application to Polish copyright law.

The latest version of the Syrian passport features illustrations depicting iconic locations throughout the country. Pages 34–35 include an illustration of Sūq al-Ḥamīdiyyah—a historic bazaar in Damascus.

The problem is that the illustration was created using a photograph by Syrian photographer Waseem Asmar, as evidenced by the “WASEEM ASMAR PHOTOGRAPHY” watermark, which was likely not removed from the photograph.

Passports featuring this illustration were put into circulation in August 2023, and according to the EU Register of Identity and Travel Documents, this series will be issued until 2027. This means that documents containing the disputed photograph will remain in circulation for many years to come.

So far, Syrian authorities have not publicly addressed the potential infringement, but the photographer himself has spoken out on the matter. In media statements, he indicated that he learned of the use of the photograph without his consent almost immediately, and although he himself calls the infringer a “thief,” there is no information that he has filed a claim against the individuals who designed the Syrian passport.

What might happen if such a situation were to occur in Poland?
The starting point is determining whether the photograph itself constitutes a work. According to the criteria set forth in Article 1(1) of the Copyright Act, any fixed manifestation of human creative activity of an individual character is a work.

In cases of doubt regarding whether these conditions are met, case law dispels such doubts by indicating that a photographer who has taken care to include elements such as: a deliberate choice of the moment of capture, the viewpoint, the composition of the image (framing), lighting, and the setting of depth, focus, and perspective, applied special effects and techniques aimed at giving the photograph a specific character—has ensured that the result of their work possesses the characteristics of a work (see the Supreme Court’s judgment of July 5, 2002, case no. III CKN 1096/00).

There should be no doubt, however, that a government-issued travel document, such as a passport, is classified as an official document excluded from copyright protection (Article 4(2) of the Copyright Act). This is due not only to the fact that the material was created by a government agency or institution, but also to the very fact that it was created as part of an official procedure.
However, the mere fact that a photograph was used in an official document does not eliminate liability for infringing the rights to the work. The exclusion of official materials from copyright protection does not, in fact, legalize the use of another person’s work during the creation of, for example, a passport. Liability for copyright infringement—not only moral rights but also economic rights—could therefore fall on the State Treasury itself. It is difficult to accept that the inclusion of a work in an official document would lead to the expiration or limitation of the author’s rights vis-à-vis anyone who used it without the required consent.

Furthermore, case law emphasizes that the exclusion of official materials from copyright protection cannot result in the author being prevented from asserting their claims. Freedom to use works—even those incorporated into a product excluded from the copyright protection regime—may be subject to limitations, for example, under provisions protecting personal rights, trade secrets, or fair competition. The reproduction or distribution of materials specified in Article 4 of the Copyright Act may also constitute damage for which compensation may be sought under general principles (see Supreme Court judgment of September 26, 2011, IV CKN 458/00; Supreme Court judgment of January 26, 2023, II CSKP 566/22).