Business practice has accustomed us to athletes, artists or other famous figures promoting various goods and services.
Accounting follows marketing. The contract providing the right to the image for promotional purposes regulates the issues of remuneration. In the case of non-residents, the question arises whether this type of remuneration is subject to withholding tax in Poland? Here we consider a situation in which works containing the image are not created in Poland.
At the beginning it is worth defining what – from the legal point of view – is the “right to image”?
Image is one of he personality rights of every human (as defined in the Polish Civil Code). The image of a given person may be recorded in a work (e.g. photo). In accordance with the provisions of the Polish Copyright Law Act, the dissemination of an image requires, in principle, the consent of the person depicted in it.
Despite placing the above-mentioned regulations in the provisions of the Polish Copyright Law Act, the mere disclosure of the right to an image does not constitute a license or granting / transfer of another copyright.
The provisions of the Polish PIT Act and the CIT Act do not include income from the right to image as a benefit taxed with “withholding” tax in Poland. These provisions regulate that taxation “withholding” in Poland is subject to, inter alia, income from copyrights or similar benefits. However, as indicated, the right to image does not count as such rights / benefits. It is also difficult to recognize that these are advertising services.
As a result, the analyzed remuneration should not be subject to withholding tax in Poland. Importantly, the lack of taxation results from the wording of Polish regulations, regardless of the regulations of double tax treaties.
A similar position was confirmed in the individual interpretations of the Director of the National Tax Information of March 29, 2021, issued recently for one of our clients: sign. 0111-KDIB1-3.4010.596.2020.4.JKT and sign. 0112-KDIL2-1.4011.976.2020.4.MKA.
