I re-post an article I wrote in 2017, because lately I was discussing this subject again. Feel free to edit if you know about some updates regarding this matter.

New Questions

If you are active on social media, have a blog, or are interested in online issues like privacy and copyright, you might have asked yourself some of these questions:

• Can I use pictures I find in the Internet?
• Can I use pictures of a celebrity?
• What are the guidelines for the correct use of pictures, when writing a blogpost?
• What happens if other people use my pictures?
• How can different laws in different countries be correctly applied?

Since these issues are relatively new and involve complex regulations that often vary from country to country, I asked all this – and more – to an expert: Brigitte Sommer of A Attorneys.

A Guideline For Bloggers

Brigitte was very helpful, explained to me a lot of things I didn’t know and made me understand the importance of knowing at least the basis of copyright  and personality rights. I liked her a lot and felt this information could be useful also for other bloggers, or anybody who is interested in the subject. So I asked her to write some guidelines and she did – scroll down to the end of the article to read them.

Before the text, here is the chat we had, that made the basic ideas even clearer to me. I hope this can help you with your online activities!

The Interview to Brigitte Sommer

Beatrice: How did you start to specialise in technology, internet, communication and intellectual property law?

Brigitte: When I studied law at the University of Zurich, my favourite subject was intellectual property law, the laws protecting creative work. The internet was not yet used by the broad public. After my first job at  a Swiss court and my bar exam, the Internet boom started. Content providers, i.e. producers of music, news, books, games, software and so on, started to use the Internet as a new distribution channel. At the same time, cybercrime evolved, i.e. illegal copying, sharing and use of other parties’ contents. I was excited about this new worldwide digital market place/industry that was – and still is – constantly evolving and was not yet regulated. So I went to work for the copyright department of  Motion Pictures Association in Los Angeles. There, I was able to co-shape required rules and participate in the first Internet relevant litigations, like the Napster case.

Beatrice: What does the Motion Picture Association do?

Brigitte: Motion Pictures Association is the trade association of the six major Hollywood studios, i.e. the largest entertainment content providers on the world, advancing the business interests of its members. Motion Pictures Association engages in the protection of creative content from piracy by lobbying legislation worldwide and in the removal of trade barriers.

Beatrice: Is Switzerland’s legislation very different?

Brigitte: The legislation process is slower than in other countries. There are only very few lawsuits, there is not much to gain since the Swiss market is so small.

Beatrice: How do I understand if a photo in the internet is copyright protected? Often, this is not written anywhere.

Brigitte: Most pictures, even if freely available in the internet, are copyright protected, so if you want to be safe…don’t use them, unless for non public/private purposes. If you are not sure about a photo, rather avoid posting it or sharing it. There are categories one can say they are free to use and not protected: trivial pictures, souvenir pictures and images for a reportage or press coverage.

Beatrice: What is a trivial picture?

Brigitte: A trivial picture is a simple snapshot that hasn’t involved any creativity. Most people take trivial pictures when traveling; they just take it. They don’t stage it or use their individual creativity to make it special. Both trivial and souvenir pictures are not copyright protected.

Beatrice: So they are free to use?

Brigitte: They are not protected by copyright, but be careful. There are always two things to consider: copyright and personality rights. If you want to publish pictures of a recognisable person, you need to ask for authorisation. Another important point is what you do with these pictures, and if you use them privately or for a commercial use. If you take pictures in front of the Gran Canyon you can share them freely. But if you want to, say, sell posters of that image, you can be sued. A blog for commercial use is also different than a blog you share in your private circle of friends.

Beatrice: As a blogger, I am happy if someone else shares my pictures, and that’s why I publish them in the internet. But do I still have a right to stop people from publishing my photos?

Brigitte: Sure. You might not want to be associated with a website,  a company, person or publication you don’t like. You might find yourself in a fake Facebook profile. Under Swiss law, your personality rights are protected, so you can sue people making use of your person.

Beatrice: How can I act against a fake Facebook profile I don’t want to be in?

Brigitte: The first step is contacting Facebook, that will ideally delete the account. Unfortunately, this procedure can be slow. If you want to go further and find out the violator’s identity, you can ask Facebook for disclosure. Since Facebook’s data are not stored in Switzerland, you need to do it by judicial assistance. Basically legislation is there, but it’s time-consuming and costly to enforce, especially when involving different countries.

Beatrice: By the way, if I receive an email from abroad asking me to pay for the use of a picture, how do I understand if it’s serious?

Brigitte: As a general rule, an e-mail is not enough to sue a person. The person who is writing cannot prove you received the message, because for example it could have ended up in the junk. So anybody who is serious would go to a Swiss lawyer and send you a cease and and desist letter. This doesn’t mean that such emails are fake. Some could be written by a real lawyer trying to settle a matter quickly, because going to a Swiss lawyer and starting the whole legal procedure is too costly, and often not worth the effort.

Beatrice: Let’s go back to the pictures I can use freely. What about celebrities, can I use their pictures in my posts?

Brigitte: Yes, if they are at a public event. If they are at a private party, for example, you will need to ask the for permission.

Beatrice: You mentioned that I can also use pictures when they are for press coverage. 

Brigitte: Yes, copyright pictures may be made available for a report on current events, like an exhibition, a fashion show or a political meeting. They are explaining what is currently happening and therefore it’s in the public interest to see them. However, this is only a guideline, not a 100 percent sure rule. If a magazine bought the rights for those specific pictures, for example, then they are copyright protected.

Beatrice: How about street style, what rules should I follow?

Brigitte: If your picture in the street involves anybody recognisable, you will need to ask for this person’s authorisation.

Beatrice: Thank you very much Brigitte, it has been a very helpful and interesting conversation. Can I take pictures of you and use them for my article, now? By the way your outfit looks great!

Brigitte:  You can (smiles). Thank you, I knew you would take photos so I am wearing one of my favourite combinations for working.

Beatrice: Appropriate and beautiful! That’s how we like it…

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Posting Photos on Blogs: Guidelines to stay legal under Swiss Law

 

Most photos are copyright protected, unless the photo qualifies as a trivial snapshot, souvenir picture or a mere image for press coverage. Photographers can freely decide on the nature and duration of the publication of their copyrighted photos. Therefore, as a rule, permission or license from the photographer/authorized licensing agency must be obtained ahead of publication, even if the photo can easily be copied from the Internet, unless the photo is not copyright protected or in public domain. Further permissions are required if identifiable persons or certain objects are pictured.

 

Swiss law provides for the following two exceptions:

1. For private use: Published photos may be used freely for non-commercial blogs which are non-public, i.e. to which access is restricted respectively limited to a circle of friends. This exception does not apply to blogs with a business purpose (commercial interest), containing ads and being publicly accessible.
2. For news coverage of current(!) events: Where necessary for reporting on current events, copyrighted photos may be made available as part of the report on current events, e.g. a cultural exposition, fashion event or similar.

 

Copyright Protection of Photos

 

Irrespective of value or purpose, photos are copyright protected if they have an individual character. An individual character is achieved by a creative process of the photographer beyond the mere mechanical image taking, i.e. in the form of an individual image composition, light design, depth effect or post-production editing. Correspondingly, well-designed personal portraits, composed photographic still lives, individually planned shootings or shots at „the right moment“ are considered protected. Only trivial snapshots, souvenir pictures or mere images for press coverage are not protected.

 

Photos of Locations

 

In principle, everything that is publicly accessible or can be seen from public ground, including buildings and pieces of art, may be photographed and published. However, there are prohibitions for national monuments, military installations and other objects provided for by various national laws. Various foreign laws allow photos for private use, but require authorization for commercial exploitation of national monuments (e.g. Eiffeltower by night because of protected light show, US national parks).

 

As soon as the photographer enters private ground, the owner may impose restrictions or even prohibit photos. All interiors, museums, shops, restaurants, some railway stations, airports, also outside grounds of sports and music events are considered private grounds. Therefore, a permission form the owner may be required.

Normally, photographs are tolerated as long as there is no commercial exploitation (souvenir pictures).

 

Photos of Works of Art or Shows

 

Works of art are protected by copyright and may not be photographed in such a way that they can be reproduced. Taking photos of renowned artists during a show usually requires an accreditation by the organizer, unless the photos are limited to editorial use (e.g. fashion show).

 

Photos of People

 

In Switzerland, general personality rights extend to the right to one’s own image, as well as name and voice. Without the consent of a person, no photograph shall be taken. Anyone who is identifiable on a photo must be asked for consent, independent of the photograph’s intended use. Consequentially, street photography is a delicate matter. In case of minors, parent’s consent must be obtained.

 

For reporting purposes, people depicted as background at the occasion of a public event, such as at a show or in front of a point of interest, at the occasion of an assembly or the like, the rights to the own image are relaxed.

Celebrities (politicians, artists, sportsmen, etc.) can be freely photographed when they are in the public. But even here, privacy must be respected.

 

Source mandatory

 

Even if photos are obtained by courtesy of friends or a license, the publication needs to refer to the photographer or source.

 

 

Brigitte Sommer, ADROIT Attorneys, www.adroit.ch

01.2017