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).