Facts
The professional photographer B. (hereinafter referred to as the Plaintiff) photographed M. (hereinafter referred to as the Defendant) in September 1991 on his order and created a portrait. The Defendant also purchased five slide duplicates from the Plaintiff. In the spring of 1994, the Defendant used reproductions of one of these color slides in election advertisements of his party without the Plaintiff's permission. The Plaintiff then sued the Defendant for a usage fee of CHF 3,850.
The High Court of the Canton of Zurich upheld the claim in the partial amount of CHF 3,420. It assessed the damages to be compensated according to the license analogy at CHF 2,850 and increased this by an infringer's surcharge of 20% or CHF 570.
The Defendant appealed against the infringer's surcharge.
Considerations
The Federal Supreme Court partially upheld the appeal and annulled the infringer's surcharge of CHF 570.
The Court explains that a lump-sum infringer's surcharge is not permissible in the present case. Such an additional compensation would introduce a punitive element into the assessment of damages, which would contradict the general principles of damage and compensation assessment and is…