File:BHM Inv. Nr. 46603.jpg
Deutsch: Ludwig von Büren (1735-1806) und seine Familie.
oil on canvas
Height: 81 cm (31.8 in); Width: 102 cm (40.1 in)
46603 Legat Eugen von Büren
|Source/Photographer||Zeichen der Freiheit, Bern 1991, S. 486.|
This photograph was first published in Switzerland. It does not have the individual character required for copyright protection under Art. 2 par. 1 of the Swiss Copyright Act. See Wikipedia for details.
According to applicable case law, the individual expression of thought required for protection is present if the photograph is given an individual character e.g. by the choice of framing, the use of camera settings or the editing of the image. Conversely, it is not present, irrespective of the object and the setting, if the image is a mere "point-and-click" image with no individual characteristics. See Blau Guggenheim v. British Broadcasting Corporation BBC, BGE 130 (2004) III S. 714-720.
According to the Public Domain FAQ published by the Swiss Federal Institute of Intellectual Property on its website, "the individuality required for copyright protection is commonly lacking for reproductions [of public domain works] which are as true as possible to the original. In contrast, an artistic photograph of a public domain work can be protected by copyright as a so-called 'derivative work'. [...] Whether a work is two or three-dimensional is irrelevant." (Version of 15 March 2015).
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