Dismissal of the claim by performing artists for infringement of copyright and personality rights as well as unfair competition

Facts

The Swiss Interpreters' Society and seven musicians who had participated in an opera performance at the Zurich Opera House sued X. and Mrs. Z. for infringement of copyright and personality rights as well as unfair competition. The defendants had made audio recordings of around 15 opera performances between mid-1979 and December 1980 and sold them to third parties at cost price.

The Cantonal Court of Zurich dismissed the claim and lifted the provisional measures that had been ordered. The plaintiffs appealed against this judgment.

Considerations

The Federal Supreme Court upheld the judgment of the Cantonal Court. It stated that the performances of the orchestra members cannot be regarded as copyright-protected works within the meaning of the law, as they lack the required degree of individuality and originality. There was also no violation of the general right of personality under Art. 28 of the Swiss Civil Code, as the musicians had participated in a public performance and could therefore not claim a…