Facts
The case concerns a dispute between Charlotte Kerr Dürrenmatt, the widow of the writer Friedrich Dürrenmatt, and the publishing house Diogenes Verlag AG. Dürrenmatt had transferred all of his copyrights to Diogenes Verlag AG by a 1986 contract. After his death in 1990, his heirs (his widow and three children) concluded a succession distribution contract in 1991, providing that certain rights, including for the work "Midas", would be jointly managed by the widow and the heirs. In 1992, Diogenes Verlag AG transferred the theatrical performance rights for "Midas" to a theatre, without the consent of Dürrenmatt's widow. She then brought legal action to have this transfer of rights declared null and void and to obtain an injunction prohibiting any stage exploitation of "Midas" without her consent.
Considerations
The Federal Tribunal first examines the issue of Dürrenmatt's widow's standing to sue. It considers that the legal provisions on co-ownership of copyrights (CopA art. 7(3)) do not apply to the heirs of an author, as co-ownership presupposes a collective creation, which is not the case here. Moreover, under the principle of the hereditary community (CC art. 602(2)), the heirs can only act together, with limited exceptions.
However, the Federal Tribunal refers the case back to the cantonal court to examine whether the succession…