When is unauthorized use of a photograph not a breach of copyright? When the photo is too banal to be protected. So says the Swiss Federal Tribunal.
There’s an interesting short article (subscription-only access) in the (German-language) Werbewoche from 23rd November, in which Ueli Grüter–a lawyer from Zürich–explains how one aspect of photographic copyright protection works: the influence of identifiably creative effort.
The Swiss Federal Tribunal had to rule on the unauthorized use of a photo of Bob Marley, shot at an open air concert in California. A similar case was brought for the unauthorized use by the BBC of a photo of Christoph Meili holding some Nazi-era bank records which he’d saved from being shredded. The cases were brought by the image owners in order to show that the images had been used in breach of copyright and that a form of compensation was due. The Court reviewed the cases in some detail and decided that the deciding aspect turned out not to be who owned the photos, but actually the degree of creative composition of the photographs. Where the case around the photograph of Marley was upheld–the creative uniqueness of the photograph was shown to be worthy of the appliance of the copyright–the other photograph was deemed “too banal” to be worthy of copyright protection.
The decision was based, according to the Werbewoche article, on the choices of viewpoint, image crop, lens width, aperture, exposure and colour. So if you want to ensure that your treasured photos are indeed protected by Swiss copyright law, ensure that you pay special attention to these aspects!