Facts
The dispute opposes A., a film actor, and the Swiss Performers' Society (SIG) to B. Film AG and C. Werbeagentur AG. A. participated in the film « Bäckerei Zürrer » in 1957 and assigned certain rights to the SIG. The defendants used a scene from the film for a commercial without A.'s or the SIG's authorization.
The claimants seized the Zurich Cantonal Court, requesting the prohibition of the use of the film scene for commercials, recognition of the need to obtain the SIG's authorization to use the performances of its members, and damages as well as compensation for A.
The Cantonal Court dismissed the claim, considering that neighboring rights to copyright are jointly owned by the participants in the creation of a work and that only a joint action is possible to assert claims arising from the violation of these rights.
Considerations
3. Active legitimation of film actors
Swiss law on neighboring rights to copyright (CopA) provides that the protected rights under Articles 33 et seq. are jointly owned by the persons who participated in the creation of a work. Article 34 CopA specifies that these rights can be exercised jointly by the participants. The Federal Court considered that this provision also applies to audiovisual works, such as films.
3.1 The notion of Gesamthandschaft sui generis
The Federal Court recalled that the participants in a work form a Gesamthandschaft sui generis, i.e. a community of rights that can only be exercised jointly. This means that film actors cannot act alone to assert their rights.
3.2 The absence of prozessstandschaftliche Vertretungsbefugnis
The Federal Court also considered that Article 34 CopA does not provide for prozessstandschaftliche Vertretungsbefugnis for film actors, unlike Article 7 CopA which provides for it for co-authors. This means that film actors cannot act on behalf…