From Textbooks to the Street
By Rinnah Anosike
On April Fool’s day in 2020 the Swiss art market was met with substantive reforms to the Federal Copyright Act 1992 (“CopA”). While intellectual property activists revel in its long-awaited, radical provisions–which finally repeal decades of inconsistency between the image market and copyright law–the new legislation is still short of a ‘copyright 2.0’ breakthrough. Nonetheless, for visual artists, the significant developments offer a more efficient enforcement of their rights when dealing with online infringement, among other issues.
To preface: CopA is the principal source of national law relating to copyrights and copyright litigation. In Switzerland, copyright vests automatically in the creator; creators do not need to register their copyright to benefit from protection. Artistic works qualify for protection under CopA as long as they are creations of the mind that possess an “individual character” (excluding ideas and thoughts), irrespective of their financial value or utilitarian purpose.
The (two) elements of the legal definition of a work are the perceptible expression of intellectual content and its individuality, meaning its originality which may be the result of a creative process. However, the extent of copyright protection for a work depends on the level of individuality, and the level required depends on the category to which a work belongs. For example, drawings, paintings and sculptures come under the artistic works category, whereas architecture, applied art and photographic works form categories of their own. Generally, the more artistic and fanciful, the broader the scope of protection.
In addition to the following, these slides explain key elements of CopA, including the duration of protection; the reproduction of works in printed and digital museum catalogues or advertisements for exhibitions; and how the IPI (Swiss Federal Institute of Intellectual Property) oversees the usage tariffs applied by copyright collecting societies.
Swiss Copyright Reform
While the latest revision of CopA entered into force almost silently, the legislative reform has been in the works since 2012 and seeks to improve something of a “bad rep” Switzerland receives from other jurisdictions, such as the U.S. who only removed the country from its Special 301 Report watch list last April. The Report “provides an opportunity to call out foreign countries and to expose the laws, policies and practices that fail to provide adequate and effective IP protection and enforcement.” However, even post-reform there have been concerns in UK legal circles that the amended law “lacks general narrative of where Swiss copyright law is heading – or should be heading.”
Even so, there have been three major developments concerning the production and dissemination of visual art, including: (1) protection of a photograph without individual character; (2) the new extended collective licence scheme (ECL); and (3) new rules for orphan works.
Historically, only works with an “individual character,” achieved as the result of a creative process, were protected under CopA. In its 2004 “Meili” decision, the Swiss Federal Supreme Court denied the work character of a photograph that depicted a security guard carrying various files (BGE 130 III 714). The Court found the photo under review devoid of any technical or conceptual technique, rendered the image as ‘common use’ and denied protection due to “lack of individual expression of thought.” By contrast, in a decision issued one year earlier, in 2003, the Supreme Court recognized a “creation of the mind” under copyright law by virtue of aesthetic appeal in a photograph depicting singer Bob Marley during a concert (BGE 130 II 168). The inconsistencies in these decisions resulted in the controversial “Nicholas Hayek” judgement in 2012. Referring to the Meili decision, a cantonal court denied copyright protection to one of two images belonging to press photographer Hayek, which were infringed when a Swiss magazine reproduced both images despite Hayek’s explicit refusal.
This confusing threshold of originality made the enforcement of copyright protection significantly more difficult. “Merely” illustrative and portrait images were typically unprotected, as were “unoriginal” photos even if the object they depicted was unique or specific e.g. art catalogue photographs. Of course, the copyright status of the object depicted, such as a painting, was considered separately.
The amended legislation has widened the scope in terms of the character requirement for photographs – including press photos, product photographs and snapshots – such that all photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered protected works under copyright law, even if lacking individual character. Crucially, users now have to obtain copyright permission before exploiting any image. The term of protection for photographs will be fifty years from the date of their creation in contrast with the 70 year term afforded to literary or fine art works after the death of their author. The new rules are applicable retroactively, however if the use of a work was already permitted, there is no need to obtain a license after the enforcement date.
This is a significant breakthrough for press photographers – who have for a while been vocal about the need for greater copyright protection, considering how quickly and widely images published online are shared with little to no compensation.
Extended Collective Licensing
The 2020 changes introduced an extended collective licence scheme (ECL). ECL permits collective rights management societies (such as ProLitteris, SUISA and SUISSIMAG) to collect royalties and authorize commercial use of copyrighted works without individual consent of the rights holder, and even in the name of rights holders who are not members of the relevant societies. The new law applies to ProLitteris, the federally-supervised institution that exclusively controls the assertion and collection of remuneration claims for anyone who rents (or otherwise makes available for a fee) copies of literary or artistic works. The author’s right for remuneration expires 70 years (or 50 years for photos) after his or her death.
Finally, the revised law widens the exception for the use of orphan works. Previously, permission was restricted in connection with archives of broadcasters and works created in Switzerland. Now, the scope of permitted use is extended to all orphan works that are accessible in public libraries, museums, collections and archives, that were produced, copied or made available in Switzerland. However, there is no threshold defined in the law as regards the number of works a user intends to make use of, so a user must seek applicable extended collective licenses. Importantly, the use of orphan works gives rise to remuneration to be paid to authorized collecting societies.
The 2020 reform is, in part, the result of continuous efforts by national trade groups, including the Swiss Art Market Association that maintain “current discussions with the IPI (Swiss Federal Institute of Intellectual Property), the FOC (Federal Office of Culture), ProLitteris, etc., on the topic of photographic image protection and appropriation art”, among other key issues.
Application of CopA in Court
A notable feature of the Swiss courts with regard to copyright litigation, is that they are loosely “bound” by prior decisions or opinions of other national courts that deal with similar cases, according to Swiss IP lawyers Thierry Calame and Peter Ling of Lenz & Staehelin. Typically however, courts will adhere to the findings established by the Federal Supreme Court in subsequent cases. By comparison, court systems in the UK and the US, for example, must follow the rulings issued by itself or the courts ranked above it.
This is significant in establishing strong case precedent – especially considering the complex emotional, political and social tensions that can underlie exploitation artworks (along with the multitude of ways in which an artist’s copyright in a work may be used and infringed upon) – and therefore relies on applicable jurisprudence to navigate similar or novel cases.
In Switzerland, the conflicting precedent set by “Meili” (2004) and “Marley” (2003), followed by the widely criticised 2012 Hayek judgement, is attributed to the judges’ lack of connoisseurship in art-related cases. Before the amended law, the inconsistent nature of those decisions made it difficult for copyright holding artists in Switzerland to predict the outcome of future litigation.
Barely Legal: Street Art in Switzerland
Does copyright law protect street art? This question has dominated international conversation among lawyers and artists in recent decades. In 2017, veteran Swiss graffiti artist Harald Naegeli, known as the “sprayer of Zurich”, debated the issue of whether graffiti is art or vandalism before a Swiss district court, which prosecuted the artist for causing CHF10,000 ($10,250) worth of damage to city-owned property between 2012 and 2013. But, it is uncertain how the Swiss courts might deal with more novel issues pertaining to street art, which have already been explored and adjudicated upon in the U.S., for example. This is highlighted, in particular, by a U.S. copyright infringement suit involving popular Swiss artist Adrian Falkner. The following explores the crux of the suit, and how Swiss copyright law might apply.
In 2018, Swiss graffiti artist Adrian Falkner, known as Smash 137, filed an action in California’s District Court against Cadillac parent-company General Motors (“G.M.”) for incorporating his mural, a commissioned work on a ten-story parking garage in Detroit, as the backdrop of a Cadillac car advertisement. G.M. tried – and failed on summary judgement – to convince the judge that the mural was inseparable from the outer wall of the parking garage, where the commercial was created.
While street artists seeking legal recourse for non-consensual, commercialised use of their works is nothing new, the reliance on precedent in this case was significant in further clarifying an issue, namely: when does a work of art become separable from the unitary architecture it is attached to? In other words, was it created as an “integrated concept” or “designed to appear as part of a building” (known as “conceptual separability”)?
G.M argued that Falkner’s mural appears on a building – that is, the parking garage – and can be reproduced since it is ‘visible from a public place’. This is also known as the “pictorial representation” exemption under the Architectural Works Copyright Protection Act (1990). While architecture is protected by copyright, the exemption allows a person to freely photograph a building with impunity. In the present case however, the judge established “a lack of relevant connection between the [Smash 137] mural,” which is the pictorial work in Falkner’s case, “and the painting garage,” and as such could not, “hold as a matter of law that the mural is part of an architectural work.”
Imagine a different scenario, in which Falkner was not commissioned to paint a mural in California, but decided on a whim to graffiti the side of a gas station in his home country. At the very least, there is the basic understanding that, under CopA, “[…] artistic intellectual creations with character, irrespective of value or purpose,” including paintings and architecture, are protected from inception. As original author, creator ownership is attributed to Falkner (confirmed by the distinctive Smash 137 tagline that appears on his work).
However, Giulia Walter, academic assistant at Zurich University explains in her “Barely Legal: Interactions Between Street Art and Law” (2020) paper that even a (non-consensual) graffiti work by any artist, even Banksy himself – which some would consider a stroke of luck – is criminal damage and punishable per Article 144 of the Swiss Criminal Code. Yet, copyright law does not exclude illegal forms of art from its scope.
“While seemingly unfair, that a graffiti could be deemed punishable by the law, in exceptional cases under criminal law the courts could actually undo the wrong and consider it as plain, legal art,” Walter explains, “the non-consensual nature would therefore play no role other than in the balancing of interests at stake.”
Now let’s consider the inverse; that Falkner was commissioned to paint a mural on the side of a private apartment block in Switzerland. How does conceptual separability apply in the context of architectural works under Swiss law? Moreover, can an artist legally protect their intellectual property if it is on a copyright exempt structure? Speaking directly with Walter, she predicts that, “the two works (architectural and graffiti) would be considered completely separate by the Swiss Courts – thereby probably misunderstanding graffiti – but at least recognizing two separate copyrights, or one for the graffiti even if it is on an uncopyrightable building.” This is in part due, Walter explains, to the Swiss Courts’ disregard for the site specificity of works of art, but also because architectural works sustain a low threshold for copyright protection, needing only ‘minimal individuality’.
As a final, broader thought, it is worth noting that national copyright laws, such as the revised CopA, are not designed specifically to protect visual artists. Differences in jurisdictional applications and philosophies are able to create confusion not only across national boarders, but also in the national application and enforcement. Artists and attorneys looking to protect copyright in visual art in Switzerland have gained some additional benefits, but their reach and practicality remain to be seen and tested in court.
 Federal Act on Copyright and Related Rights, (Copyright Act, CopA) (1992), ref. 231.1. (Urheberrechtsgesetz, URG (in German), Loi sur le droit d’auteur, LDA (in French), Legge sul diritto d’autore, LDA (in Italian)).
 Giulia Walter, Barely Legal: Interactions between Street Art and Law, (Univ. of Zurich, Working Paper No.2020/01).
 Calame, supra note 7.
 Chris Cooke, ‘Changes to Swiss copyright laws should end criticism, says Swiss government’, Complete Music Update. (Mar. 2, 2020); cf: Office of the United States Trade Representative (USTR). 2020 Special 301 Report. (Apr. 2020); See also ‘USTR Releases Annual Special 301 Report on Intellectual Property Protection and Review of Notorious Markets for Counterfeiting and Piracy’ (Apr. 2020).
 Ling, supra note 10.
 Groz, supra note 3.
 Blau Guggenheim v. British Broadcasting Corporation, Swiss Federal Supreme Court, [BGE] 130 III 714 (Apr. 19, 2004).
 Christoph Schütz, Hayek judgement of the Aargau Commercial Court of August 29, 2012, Sic! Journal of Intellectual Property, Information and Competition Law, 346 (2013).
 Groz, supra note 3.
 CopA Art. 29 (3).
 Ling, supra note 10.
 The Swiss Art Market Association “is the umbrella organisation for four art trade associations (Art Galleries Switzerland, Swiss Association of Dealers in Antiques and Art, Swiss Auctioneers Association and Swiss Art Trading Association). It works to protect the interests of members of the Swiss art market in dealings with authorities, associations, private individuals and the media. The SAMA strives for a political and legal dialogue that is open to the unique features of the art market.”
 Calame, supra note 7.
 Khanna, supra note 23.
 Groz, supra note 3.
 Eriq Gardner, ‘G.M. Can’t Dodge Graffiti Artist’s Lawsuit Over Car Ad’, Hollywood Reporter, (Sept. 19, 2018).
 17 U.S.C. §120(a).
 Falkner v. General Motors LLC, 393 F.Supp.3d 927, 937.
 Walter, supra note 6, at 8.
 Ibid., at 1.
 Ibid., at 15.
Philipp Groz, et al., Copyright 2.0? The Revised Swiss Copyright Act, SHELLENBERG WITTMER, (June 16, 2020).
Bridgeman Art Library v. Corel Corp.36 F. Supp. 2d 191 (S.D.N.Y. Mar. 2, 1999) for the equivalent leading case in U.S. copyright law on photographs and originality.
Giulia Walter, ‘Barely Legal: Interactions between Street Art and Law’, i-call Working Paper No. 01, University of Zurich: Switzerland, 8, (Nov. 2020).
About the Author:
Rinnah Anosike is the Center for Art Law’s first European Legal Fellow. She studied undergraduate law at City University of London, where she was Managing Editor of the Student Law Review (Vol. II). Following a legal internship with an international auction house, she founded an online publication to fill a gap in art news media for contemporary legal journalism, called Art & Counsel. The Author is currently interested in intellectual property, art and technology, museum law, auction law and the business of art in general.