Comprehensive copyright for photos and visuals

There’s nothing you cannot find with Google. Visuals and photos are also included in every search query – dozens, hundreds, thousands, within seconds. This is practical, entertaining, and tempts you to quickly re-use a suitable photo for your own purposes. However, since 1 April 2020, the revised Swiss Copyright Act has been in place. With the new image copyright, all photos are included in the copyright. Copyrights can be more easily enforced. However, this does not have to happen – not least thanks to respectful and restrained use and common sense – but it can be tedious or at worst expensive.

Spate of images on the Internet

Today, more photos are to be taken within two minutes than were taken in the whole of the 19th century. While 3.8 trillion photos are said to have been taken between 1826 and 2011, another trillion photos were added to this mostly digital “picture pile” in 2015 alone. Such crazy projections come from the scientific newspaper MIT Sloan Management Review. Most photos are likely to end on social media platforms such as Snapchat, Instagram, Twitter and Facebook, where they often can be seen for 24 hours max, because after that amount of time they are automatically deleted (or at least no longer visible).

The above figures for the rapidly rising quantity of photo data on the Internet are likely to have a similar “life span”. The fact is, however, that people take photos within seconds and upload them in spades. Short excursion: Probably the first light-resistant photograph was taken in 1826 by the French inventor Joseph Nicéphore Niépce (1765–1833). For this purpose, Niépce used the camera obscura. The exposure time was eight hours. This photograph shows the view from the window of his study at le Gras estate, and it still exists today – in an oxygen-free container filled with rare gas in a museum in Texas.

New all images are protected for a certain period of time

In September 2019, after years of discussions, the National Council and the Council of States agreed on revised copyright law. The aim was to adapt to the digital age. The revised Swiss Copyright Act has been in force since 1 April 2020. The corresponding image copyright protects all photographs and similarly produced visuals, whose image contents show physically existing three-dimensional objects and which have a human being as the originator (radar images are therefore not included, for example). It doesn’t matter if the picture was taken by a professional photographer in hours of work, or whether a layman snapped wildly with his smartphone. The protection includes press and product pictures as well as everyday family and holiday photos.

In the past, the protection of images depended on the fulfillment of the individuality criterion. Photos and visuals that exhibit “individual character” – for example, an artistically valuable still-life – were protected. The Copyright Act could not be invoked for images that presented “only” everyday content and were therefore not classified as an original work – for example, a photo of an everyday salt shaker. All images are now protected, but not for an unlimited time. Those who meet the individuality criterion are protected by copyright for 70 years, whereas for non-individual photographs this applies only for 50 years. The new protection for non-individual photographs has a retroactive effect on all photographs taken in the last 50 years, although permitted use under dated law will continue to be permitted.

A fictitious example: One year before this latest revision came into effect, I used photos with non-individual content for my company catalog. That was unproblematic at the time. I can continue to use this catalog in this form without having to fear legal consequences. However, if I want to update the catalog and I leave non-individual photos or visuals already used in the course of this re-worked version of the catalog, I may be in violation of the copyright in individual cases.

So much for the most important legal changes of the image copyright, according to the Statement by the Federal Institute of Intellectual Property.

Discipline is needed

As a consequence, this means that for all photos found online, the authors of which are third parties, must now obtain a permission to use them before any use on websites or on a social media profile and/or a license fee must be paid to the owner of the photograph or visual. This can even apply to visuals offered on the Internet on (not legitimate) free platforms (in case of doubt, there is no way around the time-consuming reading of the foot notes).

These copyright provisions have no relevance to images that are used for purely private use – that is, of which, for example, a printout is attached to the wall at home in the living room. In addition, I may also use copyrighted images if I include them in a separate, related context in the sense of a quotation with correct source indication. If this is consistently implemented, one should never have to fear legal consequences. But it is precisely this consequence that administrative and, at most, financial additional expenditure tends to be detrimental.

Personally, I try to avoid this topic by using only self-made photos whenever possible. Especially with regard to social media and the prevailing constant vicissitudes there, there is no strict need for perfect visual content. In other words, it doesn’t always have to be professional photos as long as they maintain decency.

Pictures on social media

This opens up a squaring of the circle problem, in my eyes. One wants to reach a maximum number of contacts on social media with a (personal) content, which is why the network effect has to come to fruition quickly. However, copyright should always be preserved. The legal basis for this is that, but anyone who wants to act uncompromisingly against any violations is probably not doing himself a favour. Basically, I see social media as an attention-grabbing plattform. I upload content there because I want it to be seen. Otherwise I wouldn’t publish it on social media. Moreover, it shouldn’t be contrary to my intention for people to share my photo on their social media channels. Accordingly, I only publish photos on social media that seem to me to be unproblematic, even if they are picked up by others. Legally, they are allowed to like and comment on my photo, but they are not allowed to re-post via their own social media channel, because it is likely that others will then miss out on the fact, that I am the author of the photo. In such a case, I could prosecute this person, but here, in my opinion, a Sisyphus mission begins, which is fundamentally contrary to the characteristics of social media. So one may ask whether the legislator has really taken account of the zeitgeist on this point with the revision. This regulation makes Switzerland a special case internationally, which makes little sense, because the usage of photos and visuals via the Internet – especially in social media – does not stop at national borders. But that is only my personal opinion, apart from the legal basis.

In other words, if I don’t want to risk a photo I’ve taken circulating “free” on social media, Then I don’t publish it, or only in manipulated form, so as not to release the original.

Of course, the reverse is also true that I can be prosecuted if I put a photo on my channel that I do not belong (including if another person took a photo with my smartphone; it is my device, but the other person is the author of the photo). The same applies to photos showing people who have not consented to the publication. Even if I publish this photo “only” on my channel and I claim in this context that this was intended for private personal use, this would no longer be effective in my defense, since I presented the photo to a (larger) public by sharing it on social media. If, on the other hand, I had printed the photo and hung it on the wall in my home, there would be no copyright or personal rights infringement.

Proportionality

This brings me now to proportionality and to the statement “Where there is no plaintiff, there is no judge”. All these legal provisions should be used when there is a legal dispute. In order to avoid this, you can, as stated, always take care to use your own photos and visuals. If this is not possible, the following points – in the meaning of common sense, if one might state it this way – should be able to avert, mitigate or reduce legal measures to a warning:

• consult professional stock-picture platforms and acquire usage rights;
• attempt to locate the owner of an photo or visual and to ask for user rights or paying a license fee;
• in the case of an unknown owner, use only a section of the image and specify the image source in the best possible way, including “Author unknown”; also ensure that the context of use for the image and its owner is not unjustifiably damaging or defamatory;
• refrain from commercial intentions;
• do not intentionally and systematically use photos and visuals without a license, because then even a criminal conviction would be possible.

A legal escalation needs to be thoroughly reconsidered, especially in Switzerland. In this country, it is still difficult to collect royalties. This is because of the “pre-litigation costs”, as Bernhard Kislig wrote in the“Landbote”: “In Switzerland, pre-litigation costs are only very restrictive and only counted after a successful court process. Since the holder of an image right in Switzerland usually has to bear this pre-litigation effort himself, he also tries to keep it as small as possible. Accordingly, he will also consider a lawsuit, because in the event of a defeat in court he will only have more costs to bear.” In addition, the holder of an image copyright cannot gain too much in court, since image licenses are mostly about small amounts of money.

The case in Germany is somewhat different with the German “photoprotection”. There, law firms have developed a common business model: they use software to systematically search the Internet for photos for which no license fee has yet been paid. “Anyone caught without a license will receive a warning letter – usually linked to a demand for money,” kislig points out. Enforcing a warning from Germany in Switzerland is possible, but expensive. If you receive a warning, it makes sense to remove the objectioned photos and/or visuals immediately from the internet platform. However, one should not sign any declaration of an injunction, because depending on the wording, this could later be interpreted as an admission of guilt. In this case, a personal talk with the plaintiff is suggested in favour of a bilateral solution.

The reverse image search

With Google, not only pictures and photos can be found for keywords, but you can also check where which image has already been used. If you click on www.google.ch on the top right of “Pictures”, you will get to“Google Pictures”. There is the possibility of “image search” (the camera icon). Here you can check by uploading an photo or visual to check whether this specific photo/visual has already been used on the Internet. This feature can also be useful for fact-checking, as stated in the broadcast “10 vor 10” of 1 September, 2020. But it also shows that within seconds anyone can determine for themselves via Google whether their own images were not used by others at best.

I did the self-test and uploaded a portrait photo, which I placed on my website of Böhni Communications GmbH and on my social media profiles, and had Google search for it. The search results included my website and my LinkedIn and Xing profiles – the result I expected. It was unexpected to get informed by Google about the fact, that other searches with related photo/visual content yielded “gentleman” as a result, which is why Google also referred to the Wikipedia article of the same name as one of the fitting search results to my research. Well, it could have been worse…