Use of product pictures in advertisement under revised Swiss copyright law

On 1 April 2020, the Swiss Copyright Act ("CopA") was revised to adapt Swiss copyright law to the new digital age. One of the often-highlighted changes is the abolishment of the high threshold for the protection of photographs. While photographers certainly welcome this development, businesses must consider the consequences of this change in law for their use of product pictures in product catalogs or on the internet.

Before the revision, a photo could only be copyrighted if it qualified as an artistic intellectual creation with an individual character. There was little doubt that most fashion photographs reached this threshold and enjoyed copyright protection. However, this was less clear in regard to the average technical product picture. Under CopA, not only photographic works with an individual character are copyright protected, but also photographs without individual character, provided that they depict physically existing three-dimensional objects. The term of protection of photos without individual character is 50 years starting with their production. For photographs with an individual character, however, the term of protection continues to be 70 years after the death of the author. Consequently, as of 1 April 2020, all product pictures are protected for a duration of at least 50 years after they have been taken.

Even though the provisions for photographs without individual character only came into force on 1 April 2020, these provisions have a retroactive effect. Accordingly, the new lower threshold for protection also applies to photographs taken before the entering into force of the revised CopA, provided that they are still within the 50-year period of protection. Consequently, as of 1 April 2020, product pictures taken after 1 April 1970 can be copyrighted, irrespective of whether they show any individual character. However, whether businesses need to take action in regard to these photographs depends on the actual date of first use: if books, catalogs and internet sites included such photographs already before 1 April 2020, they are not subject to the new law. In other words, if a business printed a catalog before 1 April 2020, it may use the catalogue after this date even if the photographer has not consented to this use. Unless permitted by law for some other reason, however, all new and additional uses require the consent of the right holder. This includes the re-uploading of photographs to a website after 1 April 2020.

Businesses who do not use their own product pictures, but use third-party pictures to advertise their products online and offline and have no valid (free) license for such use, may only do so if the pictures have been uploaded on the website or have been printed in catalogues before 1 April 2020 and there is no additional use. Consent respectively a valid license from the copyright holder is mandatory if the pictures:

• are used for the first time online or in print after 1 April 2020; or
• have been used before 1 April 2020, but there is a new use of the pictures (including re-uploading a product picture that has been used previously); or
• have an individual character and must be considered an artistic intellectual creation.