Picture rights at a photo shoot: copyright and consent

A family from Zurich has its photo taken on an autumn afternoon on the Uetliberg. A few weeks later the photographer sends the link to the gallery. The father uploads one picture to his public profile, and the photographer would like to show two others on her website. Each assumes this is obvious.

Behind this are two questions that are easily mixed up: who may do something with a picture, and who may show a person who appears in it? Copyright law answers the first, the protection of personality the second. This post describes both for photo shoots in Switzerland. It describes; it does not advise. The rules on photos of staff on a website are covered in a separate post.

Copyright lies with the photographer

The Swiss Copyright Act (CopA, German abbreviation URG) lists “photographic, cinematic and other visual or audiovisual works” among protected works (Art. 2 para. 2 let. g). Since the 2020 revision, photographic reproductions of three-dimensional objects count as works even without individual character (Art. 2 para. 3bis). The author is the natural person who created the work (Art. 6). The photographer has the exclusive right to decide whether, when and how the work is used (Art. 10 para. 1), and also whether, when, how and under what author designation it is first published (Art. 9 para. 2).

Protection arises as soon as the work is created (Art. 29 para. 1). As a rule it expires 70 years after the author’s death, and for photographic reproductions without individual character 50 years after production (Art. 29 para. 2).

What the picture means in the client’s hands

Whoever receives a gallery holds a copy of the work, but not the rights in it. The Act says so expressly: transferring ownership of a copy does not include rights of use under copyright, even if the copy is the original work. Copyright can be transferred; the transfer of one right includes other partial rights only if agreed (Art. 16 paras. 1–3).

At the same time the Act permits personal use of published works. This includes any use of a work “in the personal sphere and within a circle of closely connected persons, such as relatives or friends” (Art. 19 para. 1 let. a). Sending a family picture to the grandparents or hanging it in the living room falls within that sphere.

It is different with what the Act describes elsewhere: making a work accessible so that people can reach it from places and at times of their choosing (Art. 10 para. 2 let. c) falls under the author’s rights. A public profile on the internet matches that description. How far the client’s use may go in detail is therefore settled between photographer and client in the contract; the law prescribes no form for it (Art. 11 CO).

Use by the client	Where the question is settled
Showing or printing a picture within the family	Personal use, Art. 19 para. 1 let. a CopA
Sharing a picture on a public profile	Author’s right to make the work accessible, Art. 10 para. 2 let. c CopA
Picture for a company website or print	Agreement with the photographer, Art. 16 CopA

A usage line in the quote

What an assignment covers in detail is for the parties to decide. Usage can be stated in a short sentence, for example: “Private use, also within family and friends. Copyright stays with the photographer.” For a business portrait it can go further: “For the company’s website, social media and print.” Both versions are examples, not a template; what is agreed is up to the parties.

People in the picture: personality and consent

Another question is who may show the person pictured. Whoever is unlawfully infringed in their personality can apply to the court; an infringement is unlawful unless justified by consent, by an overriding private or public interest or by law (Art. 28 Civil Code). The Data Protection Act follows the same logic (Art. 31 para. 1 FADP). Consent is valid only if given voluntarily for one or more specific processing operations after adequate information (Art. 6 para. 6 FADP).

On photos the Federal Data Protection and Information Commissioner (FDPIC) states that everyone has a right to their own image and that a photo of recognisable people is personal data. Four of its points are particularly illustrative for photographers:

• For individual photos, the person should be able to see the picture that is to be published and know the context.
• Whoever uses photos commercially is best placed, according to the FDPIC, with permission in writing beforehand, stating the channels.
• For children, the consent of the parents or guardians is required in addition.
• Consent can in principle be withdrawn; withdrawal can however have consequences, such as costs for what has already been printed.

For a photo shoot this means: that someone has their picture taken is not yet an answer to whether the picture may appear in a portfolio, on a website or on social media. Those are other purposes and other channels.

Two questions, two answers

Question	Who decides	Where it is governed
What may the client do with the pictures?	The photographer, in the contract	CopA Art. 10, 16, 19; CO Art. 11
May the photographer show the pictures?	The people pictured	Civil Code Art. 28; FADP Art. 6 para. 6, Art. 31

The two answers are independent of each other: a family can allow the photographer to use the pictures for her portfolio and still receive only private use of them, and the other way round.

Groups, guests and background

At weddings and family celebrations there are often more people in the picture than those who gave the assignment. The FDPIC describes that for group photos those involved should be informed about the shot and the way it is published, and that objections are to be respected. People who appear only incidentally in the background need not be asked individually, according to the FDPIC; the picture is however to be deleted or not published if they ask.

What can be settled beforehand

For shoots, both questions can be settled in a quote without overloading it:

1. A usage line: what the client may do with the pictures.
2. A separate question about the portfolio: may the photographer show pictures of the session on her website and on social media? Yes or no, separate from the contract.
3. A line for families: the person booking also answers for the children and confirms that the others involved agree.
4. For weddings a note on guests: how group pictures are handled.

What we are building for this

We are building a web app for photographers in Switzerland. On every quote it will state a sentence on the use of the pictures. Whether the photographer may show pictures of the job on her website and on social media is meant to be answered by the client for each job with a yes or a no, with nothing preselected. The app does not store the pictures themselves; they stay in your gallery tool.