2.2.7 Photographs and films

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faq

Pursuant to Art. 2 para. 2 (g) CopA, photographs, films, and other visual or audiovisual works may qualify for copyright protection. However, they are protected only if they fulfil the conditions specified in Art. 2 para. 1 CopA: they must be intellectual creations with an individual character and be perceptible to the senses. Photographs are an exception, as they are protected even if they lack individual character.

Intellectual creation

First, photographs and films must result from a human intellectual creation: a person must express an intention, idea, or thought through a direct creative process. Accordingly, photographs or films produced entirely through automated processes, such as images taken by a webcam or radar, or completely generated by artificial intelligence, may not qualify for copyright protection.

Perceptible to the senses

Only photographs, images, videos, and other audiovisual works that can be perceived through the senses may be protected by copyright. The mere idea of an image is not protected by copyright.

Moreover, copyright protects the work itself, provided that the relevant copyright requirements are fulfilled, rather than the content depicted in the work. In terms of copyright, the content depicted is distinct from the photograph or video in which it appears.

For example, a video recording of a dance choreography may be protected by copyright if the video itself is created by a person and has the required degree of individuality. Its copyright protection is independent of whether the choreography being filmed is itself a copyright-protected work.

Individual character

Except for photographs, all other visual works must have an individual character in order to be protected by copyright. This raises the question of whether another author in the same situation would have created an identical or similar work. In other words, the work must reflect a sufficient degree of individuality (cf. BGE 134 III 166, 172).

When assessing individuality, not only the final result but also the creative process, the medium used, and the author’s creative freedom may be relevant.

Audiovisual and multimedia works are generally protected by copyright because their structure and complexity usually give them the required degree of individuality. The situation may be different when a work merely documents reality, for example in the case of certain press videos, where several photographers may record essentially the same footage because they are positioned in the same place and the circumstances leave no room for individual creative choices. Such videos may lack the required degree of individuality and therefore may not qualify for copyright protection.

Two-dimensional reproductions, such as photocopies, digital scans or screenshots, are generally not protected by copyright as such.

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 to one’s own image, personality rights, and data protection in photographs

A photograph may involve several people who are protected by different legal rights. The person who took the photograph, who may not appear in it, holds the copyright in the photograph. At the same time, any person who is visible and recognisable in the photograph has rights protecting their image, personality, privacy, and personal data. The use or publication of a photograph may therefore affect both the photographer’s copyright and the rights of the people depicted. 

These rights are independent of one another. Having copyright in a photograph does not give the photographer unrestricted freedom to use or publish it. When sharing or publishing a photograph, the photographer or other copyright holder must also respect the rights of the people depicted. More specifically, people depicted in a photograph have a right to their own image, which protects their recognisable appearance in the photograph and is distinct from copyright. This right forms part of the protection of personality rights under Swiss civil law (Art. 28 Swiss Civil Code). People depicted in a photograph are also protected by the right to privacy and the protection of personal data. For federal institutions such as EPFL and ETH, these protections are primarily governed by the Federal Act on Data Protection (FADP) (Art. 3 et seq. FADP). For Swiss cantonal public higher education institutions, the applicable cantonal data protection legislation applies, such as § 3 et seq. and § 9 IDG of the Canton of Basel-Stadt. 

Understanding these rights and the protection they provide is important not only for taking appropriate steps to prevent unintended infringements, but also for understanding the possible consequences of non-compliance. Depending on the right concerned and the circumstances, violations may result in civil, criminal, or administrative consequences, including claims for damages. 

The following suggestions can help respect personality rights and protect personal data when working with photographs. 

The general rule: 

As a general data protection rule, a photograph depicting an identifiable person should not be published without that person’s consent, unless: 

  • the publication is justified by an overriding public or private interest, for example when reporting on a significant public event, such as a sporting event or concert, or in press coverage produced in accordance with journalists’ professional duties; or  
  • the publication is based on an applicable legal basis that specifies how and for what purposes such an image may be published. 
  • For public institutions, such as public higher education institutions, the publication of personal data may be justified where it is necessary to fulfil a public obligation. However, the mere fact that a university has a statutory mandate to promote and support research does not necessarily provide a legal basis for every processing operation carried out by researchers in the context of research activities. The applicable legal basis must be assessed in relation to the specific processing activity and the relevant data-protection legislation (federal or cantonal). 

Consent is valid only when it is given freely and on the basis of adequate information. When individuals are clearly identifiable in photographs, or when images are used in a sensitive context, they should be given the opportunity to view the images and be informed about the context and intended purposes of their publication. They should then be free to decide whether or not to consent to the publication. In certain cases, modular consent may provide a good compromise by allowing individuals to give consent separately for different types of use. 

As a general rule, personality rights end with the death of the person concerned and are neither transferable nor inheritable. In other words, upon the death of the person depicted, their right to their own image generally ceases to apply. However, the question of whether certain aspects of personality protection should extend beyond death has become increasingly relevant. To date, Swiss law has recognized the right of relatives to protect the memory of a deceased person (post-mortem personality protection). This may include protection against publications that seriously affect the relatives’ sensibilities, for example through the publication of images of the deceased person’s body or through a distortion of the deceased person’s image or personality (cf. Büchler, Die Kommerzialisierung Verstorbener, in AJP, 2003 p. 9 et seq.). 

Photographs taken in public spaces

For photographs taken in public places, different considerations may apply when the photographer is apparent to those present and individuals appear only incidentally, for example, passers-by photographed near a historical monument. In such cases, it may be sufficient to remove, anonymize, or refrain from publishing the image if the person concerned objects; there may be no need to expressly inform or approach them in advance. However, when sharing images, particularly in a research context, researchers should always take relevant ethical considerations into account. 

Photographs with public figures 

It is important to distinguish between a public figure’s private and public life. In general, images revealing information about the public activities of public figures, where that information has not already been made public by the person themselves, may be collected and used only for internal purposes (such as for analysis purposes) and should not be shared with the public. Such information may be further shared or published only where there is a prevailing private or public interest, such as in the context of press reporting or where there is a duty to inform the public (Art. 31 para. 2 lit. f FADP). Images containing details of a public figure’s private life should be afforded the same protection as other personal data, unless those details are directly relevant to their public activities.

(Joséphine Boillat, Stéphane Werly, in: Philippe Meier/Sylvain Metille (éd.), Commentaire Romand, Loi fédérale sur la protection des données, Basel 2023, Art. 31 N68 ss).

Stylized images with genAI  

The recent use of generative artificial intelligence to restyle private images in the style of Studio Ghibli has raised both legal and ethical concerns.

An artist’s style, as such, is not protected by intellectual property rights. Copyright protects an artist’s forms of expression, rather than the artist’s style itself. An artist may therefore assert copyright or moral rights in relation to the unauthorized use or reproduction of their works. For example, in the case of Studio Ghibli, if characters created by Hayao Miyazaki were reproduced without authorization or used in a way that infringes his moral rights. However, this does not give the artist exclusive rights over their style.

As a result, transforming a photograph into a particular artistic style through genAI, such as the Ghibli or LEGO style, would not in itself generally constitute copyright infringement, provided that no protected characters, scenes, or other specific elements from the artist’s works are reproduced without authorization.

Nevertheless, the ethical questions surrounding the use of generative AI to imitate an artist’s style remain open.

Personality rights and data protection laws also apply when using artificial intelligence systems. If a person wishes to create a stylized image from a photograph in which one or more people are recognizable, consent of the individuals concerned is required, as they may remain identifiable in the resulting image. In the absence of consent, there may be no overriding interest or other applicable legal basis to justify sharing the image. 

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).

With the protection of photographs without originality, which came into force on 1 April 2020, the distinction between a photograph with or without originality is only relevant for the duration of protection: a photograph with originality - as in the case of the photograph of Bob Marley - is protected until 70 years after the photographer's death, while a photograph without originality is only protected for 50 years from the date it was taken. The photograph of Christoph Meili, which was taken in 1997, therefore remains protected by copyright until 2047 and becomes public domain on 1 January 2048.

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.