Maska artystyczna - pomiędzy dobrem osobistym, artystycznym wykonaniem a utworem

Abstract

The artistic mask, understood as a “factitious”, creatively developed identity of a person, escapes the long-accepted, and already well-established in the private law, classifications of legal interests. This makes it difficult to answer the fundamental question of whether, and if yes, then subject to what conditions, the artistic mask is protected, and also to establish the legal framework for contractual disposal thereof. This problem becomes particularly important these days, as discussions across a variety of platforms are being held on the development of one’s own personality, self-creation, how we present ourselves to others, and how far we can control how others present us. Moreover, the structure of the mask draws our attention to the area where the material, or tangible, and the immaterial, intangible, interpenetrate each other, the area that is characterized by the conflict of interest, whether or not it pertains to property-related, or economic, interest. The academic research undertaken so far allows to conclude that there are many faces of the artistic mask. Therefore, a question arises whether it is possible at all to assign it to one of the categories of protected interest that is already recognized by the law, namely an image, a work or artistic performance, or it is a new type of legal interest. In our opinion, the problem of the artistic mask is not an anachronistic one, or an artefact from the times of a pursuit to find the grounds for protection of the artists-performers. The analysis of those who practice as performers allows us to observe that the structure of the mask combines two elements, i.e. the identity and the medium. It is a characteristic feature of the mask that everything that makes up the identity, namely the character, the appearance of an impersonated character, is not real, as it would be in the case of an image of a human being, but is artificially created. Unlike is usually the case with a copyrighted work, it is not a physical object that is the carrier, or the medium, for the mask, but a human being. It can be stated that in the case of the mask, the human being is the original copy of the “work”. However, the concept of holding copyright to one’s own person is excluded as such.