IP Protection Of Digital Avatars In Poland.
1. Legal Framework in Poland (Conceptual Foundation)
(A) Copyright Protection
An avatar may qualify as a protected work if it meets originality (“author’s own intellectual creation”). This aligns with EU jurisprudence and Polish law.
Covers: 3D models, character design, animation
Owner: creator (unless contract transfers rights)
However:
Purely AI-generated avatars without human creativity may not be protected (emerging European position).
(B) Protection of Likeness (Article 81)
Polish law strongly protects image/likeness (wizerunek):
Any recognizable depiction of a person requires consent
Applies even to digitally manipulated or AI-generated images
Deepfakes are explicitly treated as “likeness” if they allow identification.
(C) Personality Rights (Civil Code Articles 23–24)
These include:
Identity
Reputation
Image
Voice
Privacy
Digital avatars can violate these if they:
Misrepresent a person
Damage reputation
Create false endorsements
2. Key Case Laws (Detailed Analysis)
Below are more than five important Polish cases relevant to digital avatars, likeness, and digital identity protection.
1. Supreme Court Judgment (15 October 2009, I CSK 72/09)
Facts
A dispute over unauthorized use of a person’s image.
Legal Issue
What constitutes a “likeness” (wizerunek)?
Holding
The Court defined likeness as:
“Perceptible physical characteristics enabling identification.”
Importance for Digital Avatars
This definition is technology-neutral
Applies directly to:
AI avatars
Deepfakes
CGI recreations
👉 Even a synthetic avatar qualifies if people can recognize the person.
2. Supreme Court Judgment (20 May 2004, II CK 330/03)
Facts
Unauthorized use of a person’s image in a commercial context.
Legal Issue
Scope of likeness—does it include more than facial features?
Holding
The Court expanded likeness to include:
Clothing
Style
Behavior
Professional identity elements
Relevance
This is crucial for avatars:
A digital avatar copying:
a celebrity’s voice
gestures
style
→ can violate IP even if the face is altered.
👉 This directly anticipates modern deepfake avatars and virtual influencers.
3. Warsaw Court of Appeals (5 September 2003, VI ACa 120/03)
Facts
Use of a public figure’s image without consent.
Legal Issue
Can public figures’ images be used freely?
Holding
Public figures have limited protection only in informational contexts
Commercial use still requires consent
Relevance
For digital avatars:
Creating an avatar of a celebrity:
❌ Not allowed for ads or branding without consent
✔ Possibly allowed in news/reporting
👉 Important for AI-generated celebrity avatars in marketing
4. Warsaw Court of Appeals (19 April 2000, I ACa 1455/99)
Facts
Dispute over whether consent to use an image existed.
Holding
Consent must be:
Explicit
Specific to context, form, and purpose
Relevance
In digital avatar context:
General consent ≠ consent for:
AI training
deepfake creation
metaverse use
👉 Platforms cannot rely on vague consent clauses.
5. Supreme Court (Implied from jurisprudence on personality rights)
(Developed across multiple rulings under Articles 23–24 Civil Code)
Principle
Unauthorized use of identity elements → violation of personality rights
Application to Avatars
Courts consistently recognize:
Identity misuse
False attribution
Reputation harm
👉 A digital avatar that:
speaks false statements
appears in harmful content
→ triggers civil liability (injunction + damages)
6. CJEU Case C-401/19 (Poland v Parliament & Council)
Context
Challenge to EU Copyright Directive (Article 17).
Holding
CJEU upheld stricter liability for platforms.
Relevance to Digital Avatars
Platforms hosting avatars (metaverse, social media):
must prevent IP infringement
may be liable for user-generated avatar misuse
👉 Important for:
VR platforms
avatar marketplaces
AI content tools
7. Emerging Doctrine: Deepfakes as Likeness Violations
Based on Polish legal scholarship and case law interpretation:
Key Principle
Deepfakes = unauthorized dissemination of likeness
No consent → automatic illegality
Commercial use → aggravated liability
Remedies include:
injunction
damages
public apology
3. Legal Remedies for Avatar Misuse
Under Polish law, victims of unauthorized digital avatars can claim:
(A) Civil Remedies
Injunction (stop use)
Removal of content
Public apology
Monetary damages
(B) Copyright Remedies
Compensation
Disgorgement of profits
Statutory claims under Articles 78 & 83
(C) Criminal Law (in specific cases)
e.g., synthetic child imagery (Article 202 Penal Code)
4. Key Legal Issues in Practice
1. AI-Generated Avatars Without Human Input
Likely no copyright protection
But still subject to:
personality rights
likeness protection
2. Ownership of Avatars in Metaverse
Platform vs user depends on terms of service
Copyright and contractual law intersect
3. Overlapping Rights
A single avatar may involve:
Copyright (design)
Personality rights (identity)
Trademark (if used commercially)
5. Conclusion
Poland provides strong protection against misuse of digital avatars, even though no specific “avatar law” exists.
Key Takeaways:
Digital avatars are protected primarily through:
likeness rights
personality rights
copyright (if original)
Courts adopt a broad interpretation of identity, covering:
appearance
behavior
style
Consent is central and strictly interpreted
Case law already anticipates modern AI/deepfake issues
RELATED Blog
comments