This has now been clarified by the Supreme Court: The freedom of panorama enshrined in the German Copyright Act and the EU Copyright Directive of 2001 does not extend to images of protected works that were created from the air with drones. The Federal Court of Justice (BGH) on Wednesday confirmed the corresponding decision of the Higher Regional Court (OLG) Hamm (ref: I ZR 67/23). The restriction on the creator’s exclusive right of exploitation by section 59 of the Copyright Act (URHG) is therefore intended to exempt “the use of works to the extent that they form part of a street or landscape visible to the general public”. The view from a place that is usually inaccessible to the general public – which the judges in Karlsruhe count as heights that are easily accessible with drones – is therefore not covered by the freedom of panorama.
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Only the license fee has decreased slightly
In this case, the collecting society (VG) Bild-Kunst sued a publisher from the Ruhr region, which published the book “Über alle Berge – Der Definitive Haldenführer Ruhrgebiet” in several editions. Pot features art installations on mine shafts. The publisher also used photographs taken from drones. In 2018, artist Jan Bormann sent VG-Wort copies of the controversial books and revealed that they contained aerial photographs of his installations “Sundial with Geocross” and “Spurwerkturm”. Other affected artists joined the lawsuit, which was initially filed at the Bochum regional court in 2021. The Hamm Higher Regional Court largely upheld its decision, but reduced the license fee slightly to 1,824 euros.
The Federal Court of Justice now essentially sticks to its relevant case law based on newly available technologies for creating and distributing photographs. He had previously ruled that photographs of protected works that were taken from a special aid such as a ladder or through access to an elevated private apartment after removing devices protecting the view such as hedges were now subject to freedom of panorama. Does not come under.
Frankfurt judges ruled completely differently in 2020
The first Civil Senate of the BGH has now shed light: When interpreting Section 59 of the Copyright Act and EU law, a balance must be struck between the freedom of information and communication of users of the work and the legitimate interest of the authors to engage in commercial exploitation as fairly as possible. His work. In the case of the use of photographs taken from the air by drones in book publications, this comparison “favors the interest of the authors of the photographed works”. Photos or videos taken from above by drones may not be freely reproduced, distributed, publicly displayed, or marketed.
The BGH points out that this interpretation also exploits the scope of the EU Copyright Directive “in a permitted manner”. Therefore the normal use of the protected object should not impair it. The legitimate interests of the rights holder must not be unduly infringed. The Frankfurt am Main regional court issued a separate ruling in a similar case in 2020. According to him, according to the Copyright Directive, only “that the work is in a public place” should be relevant. However, it does not matter from where it is viewed. The Frankfurt judge also wanted to close the “gateway to warnings” about aerial photos shared by users on social networks. Pictures of a light installation in Hamburg caused a stir here.
(mho)
