Will Polish Copyright Change Direction? Warsaw Appeal Court Decision

Author: Anna Sokołowska-Ławniczak

Polskie Koleje Państwowe (PKP S.A.) conducted an advertising campaign to promote its services on various posters, leaflets, banners, and billboards, using a slogan taken from Polish song.

The plaintiff, author of the lyrics of the well-known song Remedium, claimed that PKP had used part of the song in question, and that the defendant was in breach of the author’s right to decide how the work was used and disposed of. The plaintiff also stated that the modification of the words were detrimental to the form and content of the artistic work.

The regional court dismissed the lawsuit, finding that a single phrase in the lyrics of a song is not protected under copyright law, remarking, among other things, that the phrase in question did not have any original features and thus was not subject to protection.

On the other hand, the court of second instance – the Warsaw Appeal Court, found in favor of the plaintiff in a judgment of 17 July 2020 (case VI ACa 666/18). The Appeal Court stated in the statement of reasons for the judgment that use of even a short segment of the lyrics of a word and musical work might be an infringement of copyright. The court stated that when reviewing the issue of infringement, the focus should always be not whether a particular phrase which is part of a larger work exists separately as an artistic work in the meaning of copyright law, but whether that phrase is an essential element of the whole work from which it is taken, and whether it reflects its original and unique nature and demonstrates to the listener those elements that express the intellectual creativity of the author of the entire work.

The court found that the borrowing and modifying by the defendant of the phrase for advertising purposes was a reference to the song Remedium, and that the reference was immediate and evident to any listener. In this case, therefore, the issue was not description in an advertisement of the quite mundane action of getting on a train to with no particular destination, but intentional reference to the popularity of the song and the pleasant associations and memories it evokes for listeners.