## Facts

- Between mid-1979 and December 1980, X secretly recorded roughly 15 live opera performances at the Zurich Opera House and sold about as many cassette copies at cost.
- A criminal investigation for copyright-related offenses was opened against X and later extended to Z.
- A Swiss performers’ collective society and several participating performers sued X and Z in civil court seeking to stop further recording and sales and to obtain relief.
- Plaintiffs alleged (1) copyright infringement on the theory that the performers’ interpretations were protectable “works,” (2) infringement of performers’ personality rights from unauthorized fixation and dissemination, and (3) unfair competition.
- The cantonal civil court dismissed the action, reasoning that orchestral/choral performance does not create an independent copyright-protected work and performers are not “authors” on that basis.
- Plaintiffs appealed to the Swiss Federal Supreme Court; the Court treated the personality-rights dimension as non-pecuniary and therefore appealable.

## Issues

1. Whether performers’ interpretations of preexisting musical stage works constitute independent “works” protected by copyright under Swiss law.
2. Whether unauthorized recording and distribution of live performances can infringe performers’ personality rights, supporting civil remedies.
3. Whether surreptitious recording and distribution of performance cassettes constitutes unfair competition.
4. Whether the appeal was admissible notwithstanding any monetary-amount limitations, given the personality-rights claims.

## Decision

- The court held that performers’ interpretations, on these facts, did not qualify as copyright-protected “works,” and plaintiffs could not obtain relief by characterizing the performances as authorship under copyright law.
- The court recognized that unauthorized fixation and dissemination of performances can implicate performers’ personality rights; the related dispute was non-pecuniary and thus appealable.
- The court treated unfair competition as a potentially available, separate basis of protection for exploitative recording/distribution conduct, without reclassifying performers as copyright “authors.”

## Legal Principles

- Copyright protection requires an original intellectual creation with a minimum degree of individual personal imprint; artistic effort alone is insufficient.
- Performances that primarily realize a preexisting work—particularly ensemble performances constrained by score, conductor, and production—ordinarily do not constitute a new independent copyright work.
- Unauthorized recording and dissemination of a performer’s live performance may infringe personality rights, including interests in control over one’s artistic presentation and its dissemination.
- Personality-rights disputes are non-pecuniary and may be appealable on that basis.
- Unfair competition law may supplement protection where a party exploits others’ performances without authorization and without bearing corresponding costs, even if copies are sold at cost.

## Conclusion

The court rejected copyright-based claims premised on treating ordinary operatic interpretations as independent works, while confirming that performers may seek protection through personality-rights and, where applicable, unfair-competition doctrines against unauthorized recording and distribution of their performances.


Schweizerische Interpreten-Gesellschaft v. X, 110 BGE II 411 (Switz. 1984)