Image theft?

In practice, there are an increasing number of cases in which photo agencies and their lawyers hunt down images by their photographers that are used without a license. The users are warned and demanded to pay high fines. However, the suspected perpetrators include not only small business owners, who often copy an image from the Internet without thinking and use it to embellish their homepage, but increasingly also advertising and marketing agencies. In recent days, even the IT giant Apple has hit the headlines for using an image by a Swiss photographer in a way that was not in accordance with the agreement. In such cases, the first question that arises is whether an image is protected by copyright at all. The Federal Supreme Court has practically discussed the question of copyright protection for photographs on the basis of two lawsuits. In the first case, the Federal Supreme Court had to assess the copyright protection of a picture taken by Swiss photographer Max Messerli at an open-air concert in California by reggae singer Bob Marley in 1978. The image was used by a Swiss company to print posters, among other things.

The second case involved a photograph of Christoph Meili, a security guard at a Swiss bank who became famous for rescuing bank files relating to so-called dormant assets from the shredder, which he shows in a photograph. This picture of the Swiss journalist Gisela Blau was shown by the BBC without being asked in the documentary "Nazi Gold". According to Art. 2 of the Copyright Act (URG), the protection of photographs requires that they have an "individual character". According to the case law of the Federal Supreme Court, individuality is achieved in photographs through the use of photographic techniques, through the design of the photographed object or through tension in the image. Photo-technical means are, for example, the choice of the angle of view, the image section, the focal length of the lens, the aperture, the brightness or the coloring. A photographed object can be designed in the sense of this case law insofar as the photographer determines the pose of a portrayed person, the selection and spatial arrangement of a still life, the lighting or the choice of the surroundings of an object. The third element, the tension in the image, leaves the door open to interpretation and makes it practically impossible to judge in advance whether a photograph is entitled to copyright protection. In the case of the photograph of Bob Marley, for example, the Federal Supreme Court found that the shadow cast by the Rasta curl on Bob Marley's cheek created a particular tension and granted the image copyright protection. In contrast, the Federal Supreme Court found Christoph Meili's image to be banal and therefore did not consider it to be protected by copyright.

Ueli Grüter*