legal insights
5. July 2023
Dr Stephan Dittl
Sabrina Arndt
The Higher Regional Court of Hamm (judgment of April 27, 2023 – 4 U 247/21) had to deal with the question of whether aerial photographs of fine artworks taken by a drone infringe the artists' copyright or whether such photographs are permissible under the keyword of "panorama freedom" according to German Copyright Act, Section 59 UrhG/Art. 5 para. 3 lit. h) EU Directive 2001/29/EG. The artworks were installed on mining piles.
The plaintiff is an association whose purpose is to hold in trust the rights of use and consent as well as the remuneration claims of authors and persons entitled to ancillary copyright in the visual field (painters, sculptors or photographers). For this purpose, several artists who are the creators of installations erected on mining piles in the Ruhr area joined the plaintiff. The defendant runs a book publishing company. As part of its publishing activities, the defendant published two illustrated books showing aerial photographs taken by drones of the installations of the artists who joined the plaintiff.
The plaintiff first asked the defendant about the number of copies of the two illustrated books for a subsequent licensing of the aerial photographs. The defendant rejected this demand. He invoked that the publications were covered by the panorama freedom under copyright law (Section 59 UrhG/ Art. 5 para. 3 lit. h) EU Directive 2001/29/EG).
The Higher Regional Court of Hamm ruled that the installations at issue were indisputable works protected by copyright (Section 2 para. 1 no. 4 UrhG) and that the publication of the aerial photographs taken from them constituted an encroachment on the right of reproduction and distribution protected by copyright (Sections 16, 17 UrhG/Art. 3, 5 EU Directive 2001/29/EG).
The court rejected the core question of whether this encroachment on copyright is permissible based on the copyright limitation provision of the panorama freedom (Section 59 UrhG/Art. 5 para. 3 lit. h) EU Directive 2001/29/EG). The panorama freedom under copyright law allows works permanently located on public paths, streets, or squares to be reproduced, disseminated, and publicly reproduced by painting, graphics, photographs, or film. The OLG found that the artworks in dispute were in a public place since the mining piles with the artworks on top of it could be accessed by the public or at least be seen from the public spots. However, this did not mean that taking photos of the artworks from any perspective was permissible. Only those perspectives available to the viewer from public paths, streets, or squares were permitted. That did not apply to the pictures taken by the defendant, as they were taken from the air using a drone.
However, even on a favorable interpretation of the panorama freedom, airspace was not one of the places not exhaustively listed in Section 59 UrhG/Art. 5 para. 3 lit. h) EU Directive 2001/29/EG. From the outset, the panorama freedom only concerns those perspectives the eyes of a person can see from generally accessible places. In this respect - also to take sufficient account of the interests of the authors - only places and installations were covered which formed part of the earth's surface or were at least permanently and firmly connected to it. In addition to the public ways, streets, or squares explicitly listed in Section 59 UrhG/Art. 5 para. 3 lit. h) EU Directive 2001/29/EG, the court also mentioned public water areas, observation towers, and viewing platforms where you can take photographs without consent. Airspace differs from these places since people are not able to reach it alone with their natural abilities but only with special aids and means of locomotion (like passengers in an aircraft).
Furthermore, the judgment of the OLG Hamm also fits into the existing case law on the scope of copyright in connection with the panorama freedom, as its reasons for the decision are based on the principles established in the BGH case law "AIDA-Kussmund" (judgment of 27 April 2017 - I ZR 247/15). As the OLG explained, the BGH had clarified that the purpose of the panorama freedom does not include photographs of the work that were taken by using special aids (such as a ladder) or after removing view-protecting devices (such as a hedge). The OLG fully agreed with the BGH's statements and consistently applied them to the present case. In this respect, a drone - which, in comparison with a ladder, does not even have contact with the ground - is a tool that can also be used to circumvent view-obstructing devices without any problems.
The ruling of the Higher Regional Court of Hamm thus sets clear limits to the panorama freedom in favor of copyright protection. In doing so, the court, first, observes the principle of narrowly interpreting limitations to copyright protection to avoid an undermining of copyright protection. In this context, the distinction in case law between
may not be easy to handle in practice but appropriate. Otherwise, with the progress of technology, there would be a danger of taking photographs from every conceivable perspective with the help of drones. That would be permissible and thus freely exploit the artworks by invoking the panorama freedom. With this decision, the OLG has now stopped the erosion of copyright that this would entail.
Against this legal background in Germany, people should currently refrain from taking drone pictures of copyrighted works, as otherwise they could face injunctive relief and claims for damages. These are initially good news for the authors since the author`s not publicly accessible works also enjoy protection, and it is possible to prosecute the exploitation of corresponding photos. However, this is only the status quo: the Higher Regional Court of Hamm has allowed the appeal so that the Federal Supreme Court will now have the opportunity to decide on the area of tension between panorama freedom and technical development.
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