2.2.7 Photographs and films

to consider
good to know
faq

Pursuant to Art. 2 para. 2 (g) CopA, photographs, films and other visual or audiovisual works can enjoy copyright protection. However, only when they fulfil the conditions specified in Art. 2 para. 1 CopA, if they are also intellectual creations with an individual character and are perceptible to the senses.

In the first place, it is crucial that photographs and films are created by one person who expresses an intention or a thought (intellectual creation) in the process. Thus, photographs or films which are made from an automatic processing, such as a webcam or a radar picture for example, cannot be protected works.

With the new Art. 2 para. 3bis CopA the copyright protection is extended to pictures of three-dimensional objects that do not have individual character.

A photograph is thus covered under Swiss copyright when the following request are fulfilled:

Pictures of photocopies, or reproductions of texts, plans, graphic representations or other kind of bidimensional documentation are therefore not protected works.

Except for photographs, for all other works it also raises the question as to whether another author in the same situation would have created an identical or a similar work (an individual character) (cf. BGE 134 III 166, 172). In the process, not only the result is important but also the design medium and the author’s creative leeway.

Audiovisual and multimedia works usually have copyright protection as they generally fulfil the criteria of individuality due to their structure and complexity. The situation is different when the authorship only depicts reality, as anyone else would do in exactly the same way.

Website last updated: 1.4.2020

TO CONSIDER

Joint authorship and derivative works often exist in the case of audiovisual and multimedia works

Often, several people are involved in the creation of audiovisual and multimedia works (director, screen writer, cameraman, film editor, sound engineer, producer, etc.). Unless otherwise contractually agreed between the participants, joint authorship usually exists (Art. 7 CopA). The situation is different for film music. Here it is important to distinguish whether the music used in the film was composed before the production of the film or for the film itself. Joint authorship can only exist in the latter case. In the former case, the composer alone keeps his original sole copyright in the work.

If a pre-existing work such as a novel is used for the filming of an audiovisual or a multimedia work, or an existing film is used to produce a multimedia teaching work, a derivative work (Art. 3 CopA) can exist. This also applies to film music when it involves compositions which have arisen independently of a film, but which are edited for a film.

Right of personality and data protection in the event of photos

Besides the copyright protection which protects the rights of the photographer or the photographs, photographs of people are subject to the right to one’s own image as a partial aspect of the protection of legal personality Art. 28 Swiss Civil Code (SCC) and the Federal Act on Data Protection (FADP) (Art. 3 et seq. FADP or Art. 12 FADP or corresponding provisions in the cantonal data protection regulations, e.g. Kanton Basel-Stadt §3 et seq. IDG or. §9 IDG).

As a result of the right to one’s own image (Art. 28 SCC), the right of the depicted person to self-determination is protected (i.e. their right to determine how and where their image should be published and distributed). An infringement of the right to one’s own image is only considered to exist when the affected persons recognise themselves in the image (subjective recognition) and others can recognise them (objective recognition). Every infringement of the right to one’s own image is basically unlawful; the person whose rights are infringed can defend themselves with various claims (claim for an injunction, claim for a declaration of their rights, claim for cessation, claim for remuneration and claim for satisfaction Art. 28a SCC).

However, the law recognises three conditions in which there are no infringements (Art. 28 para. 2 SCC):

  1. when the person depicted explicitly or tacitly consents to the use of their image in a specific case,
  2. when there is an overriding private or public interest, or
  3. when there is a legal justification, i.e. it is laid down in a law that a corresponding use of an image is legal.

Personality rights basically end with the death of the person depicted and are neither transferable nor inheritable, i.e. with the death of the photographed person, their right to their own image is lost. However, the question of whether the right of personality has to be extended beyond death is arising more frequently in connection with the increasing commercialisation and attention paid to famous people, similar to the copyright protection deadlines. Only the right of the relatives of the deceased person to their memory, i.e. memory conservation, has been recognised to date. This includes the protection of the sensibilities of the relatives when they are offended by the publication or distribution of images of the body or also through the distortion of the image of the living person. (cf. Büchler, Die Kommerzialisierung Verstorbener, in AJP, 2003 p. 9 et seq.)

The right to one’s own image is extended and specified more precisely by the protection from unlawful processing of personal data pursuant to data protection law. Personal data includes all information which relates to an identified or identifiable person (Art. 3 (a) FADP); this also includes photographs of people. Pursuant to the Federal Act on Data Protection, all processing of personal data (collecting, archiving, using, reworking, notifying, destroying, etc.) which is done against the will of the affected party is illegal and may only take place when there is a justification for doing so. The justifications in federal data protection (Art. 13 FADP) correspond to those under personality protection.

GOOD TO KNOW

Snapshots and the Federal Supreme Court

The Federal Supreme Court had to judge the copyright character of portrait photographs in two cases. One had to do with a popular snapshot of Bob Marley with windswept dreadlocks that was taken by a Swiss photographer at an open-air concert (BGE 130 III 168). The other case related to a press photograph which depicts the security guard Christoph Meili holding two large books as corpus delicti in front of the camera in connection with what are referred to as dormant assets, as per the instructions of the photographer (BGE 130 III 714). In the case involving Bob Marley, the Federal Supreme Court ruled that the photographer had not taken a snapshot but had rather used his creative leeway to press the shutter release at exactly the right time and selected a special section of the picture, thus giving the photography sufficient individuality.

The Federal Supreme Court ruled differently in the case of the photograph of Christoph Meili. Although the photographer has clearly not taken a snapshot in this case but has clearly staged the picture, the Federal Supreme Court disputed that the photograph had the required individuality and thus did not grant it copyright protection. The Federal Supreme Court confirms the previous instance with the following words: “The detail and the viewing angle produced a frontal portrait in a size in which the face of Meili and both tomes shown by him were the focus, and the titles of both tomes could be clearly read in the original photograph. Everyone who wanted to show that Meili had been in possession of the questionable documents would have selected the picture elements. All other photo-technical tools were conventional and corresponded to what a basic camera would have automatically selected. Furthermore, the way in which Meili holds up the two tomes, namely with the title pages front on to the camera, are typical and correspond to the way everyone would arrange them. Finally, the lighting was flash-lighting as would be produced in every basic camera by a built-in light. The picture is only unique due to its subject. This documents a highly unusual case which attracted worldwide attention at that time.” (BGE 130 III 716).

UPDATE 2020: As a result of the new Swiss Copyright Act, this photograph of Meili is yet covered under copyright protection. Hence, the photographer can’t claim a payment for its retroactive use, but his permission is now required for any new use up from 1st April 2020, beside the law’s exceptions. (Message du Conseil fédéral du 22.11.2017 relatif à la modification de la loi sur le droit d’auteur, pag. 588 ss).

FAQ

2.2.7-1 Can a research project invoke public interest when publishing photographs of famous people and publish the photographs without the consent of the people depicted?

Only under certain conditions. Pursuant to the law, every publication of photographs of people is unlawful (Art. 28 SCC, Art. 13 FADP), except when one of the following three exceptions exists:

  • the photographed person has given their consent to the image;
  • there is a legal justification for the image, or
  • there is an overriding private or public interest in the image. Public interest can only be determined by weighing up the interests at stake. In the process, the mutual interests are contrasted – on the one side, the interest of the photographed person in protecting their personality and their right to determine themselves when and where they are pictured, and on the other hand, the interest of the public in their person. These two interests must be weighed up against each other.

The weighing up of interests plays a big part in practice. In this case, it is necessary to ask how important the person is for the public. The more important the person is for the public, the less of a requirement there is to gain their consent. Here you can take note of the following:

  • If they are extremely important people of contemporary history (i.e. people who work entirely in the public arena, e.g. the pope, the president of the USA, world-renowned artists and musicians, etc.), you are permitted to publish photographs of them without their consent.
  • If they are public people (of contemporary history) who are only the focus of public attention for a limited time, their photographs may also be published during the period of their fame without consent.
  • If they are “normal”, non-public people (e.g. the neighbour, an employee, a pedestrian, etc.), then their consent is always required

However, if in doubt, it is always advisable to obtain consent.

When publishing photographs, the copyright of the photographer must always also be considered.

2.2.7-3 Can a participant in a public university event refuse to have their picture taken? Can this person request that photos taken of them are removed?

It depends on how “important” the person is to the public:

  • Yes, if the person in question is a “normal”, non-public person (e.g. a student, employee, etc.). In this case, it is illegal to take pictures of the person without their consent. The person can defend themselves against being “photographed”, in particular by demanding the deletion or removal of the photos (e.g. from the university’s homepage) and by invoking the data protection law on photographing a person. Photographs in which a person can be recognised are one example of sensitive data on their person (Art. 3 FADP). Pursuant to the Federal Act on Data Protection, every dealing, in particular also the creation of data, is unlawful, unless there is consent, a higher private or public interest or a legal justification for it (Art. 13 FADP).
  • Generally not, when the person is a public personality, at least for a limited time (e.g. rector, personality from business, politician). A person who works in the public arena must accept “being photographed” if it is in connection with their fame and the event.

2.2.7-4 Are portrait photographs copyright protected?

If a portrait photograph is an intellectual creation i.e. was taken by a person (and not in an automatic photo booth) and has an individual character, i.e. the photographer has not simply snapped the person in the portrait in any particular way but rather with sufficient creative means and leeway (choice of lens, filter, moment of shooting the image, etc.), it is considered to be a protected work. Simply said, you can ask whether another person in the same situation would have taken the same or a very similar picture. In this case, you would have to deny that it has copyright character.

In case of doubt, it is advisable to assume that the work in question is protected by copyright.

UPDATE 2020: As a result of the new Swiss Copyright Act, a photographic portrait has to be considered as a protected work just because it is an intellectual creation, that means, there was a human being that snapped the shot, even if that photograph doesn’t have individual character.