Beware when using third party photographs: Increased “warning letter” activity in Switzerland!

For a long time, the protection of photographs in Switzerland was limited. Only “works” were protected under the Swiss Copyright Act, i.e. photographs which have (sufficient) individual character. The threshold for individual character established by the courts was rather high, and the distinction very difficult to make. Two leading cases of the Federal Court (the “Wachmann Meili” and the “Bob Marley” case) gave some guidance, but in my humble opinion none of the decisions was fully convincing and allowed to make a clear assessment.

Under the revised Copyright Act, any and all photographs of three-dimensional objects are protected like works – irrespective of whether or not they have individual character. This applies to all kind of photographs, not only award-winning press photographs but also snapshots and family or holiday pictures.

The use of third party photographs for instance on a company’s website needs to be carefully evaluated to avoid copyright liability. With the recent changes in the law, we observe an increased number of warning letters sent on behalf of photographers, claiming infringement of their copyrights and requesting injunctive relief as well as compensation for damages. We also observe that some letters are sent by attorneys or right holder organizations based in Germany, applying German “standards” – and thereby overlooking specific aspects of Swiss law, such as for instance transitional provisions applying to photographs which have been created before the revised Copyright Act came into force.

This does not mean that warning letters received from foreign attorneys or right holder organizations should simply be ignored. To the contrary. While with the revised law there are only limited options to argue that the photograph is not protected under copyright laws, there still are various defensive arguments to be raised. It is, therefore, advisable to seek legal advice – because very often it is possible to settle the dispute quickly by providing undertakings and without any or at least without substantial payments.

On a side note: In contrast to Germany, Switzerland – at least to date, it remains to be seen how this will develop in the future – is not know for having a “warning letter mentality”, which is why there are hardly any Swiss court cases on the legal classification of such warnings and further rights, including compensation for damages, account of profits or unjustified enrichment. Recently, the Commercial Court of the Canton of Zurich had to deal with warning letter a user of photographs on the company’s website received from the legal representatives of the German photographer and author of the photographs. In this specific case, the photographs had been put online by the photographer using Creative Commons licenses. With the Creative Commons license, authors grant the public rights to use their works as long as the appropriate conditions are met. In the case at hand, the court refused the right photographer’s claims for financial compensation. But this may have been due to the specific circumstances of the case. We will closely follow future developments, so stay tuned!

Baker & McKenzie, Switzerland

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