Czy każdy twórca tworzy dzieło? (Rozważania prawne w zakresie podstawy prawnej dla świadczenia pracy twórczej)

The impulse for this paper was a controversial ruling of the Supreme Court of 10 January 201717, in which the Court refused to treat contractual work performed by a performer in an orchestra as a contract for specific work and stated that it was rather a contract for the provision of services. To justify that position, the Court found that: “The statement that the contract for a specific work was to consist in the staging and performance of a concert, makes it impossible to clearly ascertain the detailed parameters of the agreed outcome”. The Court further pointed out that: ”Adding to the fact that the interested party was one of the performers subordinated to the conductor, it is hard to conclude that the parties clearly defined the shape of the specific work in question. (...) On the contrary, this leads to a conclusion that the interested party and the remitter were bound by a contract for the provision of services”. However, the wording of the Supreme Court’s judgment should be considered erroneous as no basis therefor can be found in the knowledge and practice of performing music. Moreover, following the line of the Supreme Court’s reasoning, it turns out that a contract for specific work consisting in an artistic performance during a concert, can only be concluded if it involves creating a new piece, i.e. if it is improvised or spontaneously created. However, if a piece is not created anew and we are dealing with an artistic performance only, a contract for specified services should be concluded. And with that, one cannot agree.