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 made from the air with a drone. This was decided by the Higher Regional Court (OLG) in Hamm with a judgment that has now been published on April 27 (Az.: 4 U 247/21).
Such photos, videos or paintings may therefore not be freely reproduced, distributed, publicly reproduced or marketed. Accordingly, only recordings and representations are privileged that have been taken from public paths, streets or squares and that reproduce the view from there “as it is offered to the general public”.
In this case, the collecting society Bild-Kunst has filed a lawsuit against a publisher from the Ruhr area, which publishes the book “Über alle Berge – Der definitive Haldenfuhrer Ruhrgebiet” in two versions. It presents works of art on spoil heaps in the pot. The defendant also used photographs taken with a drone.
In 2018, the artist Jan Bormann sent the plaintiff a copy of each of the two books and pointed out that they contained the aerial photographs of his installations “Sundial with Geokreuz” and “Spurwerkturm”. The lawsuit finally filed in 2021 before the Bochum Regional Court was joined by other affected artists. The publisher takes the view that the use of the photographs is covered by the freedom of panorama. The district court allowed the complaint in its entirety. The appellate body has now largely confirmed the previous decision.
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The fourth civil senate at the Higher Regional Court, which is responsible for copyright, relies primarily on the judgments of the Federal Court of Justice (BGH). The restriction of the creator’s exclusive right of exploitation through the freedom of panorama regulated in Section 59 of the Copyright Act is intended to enable the public “to view what they can see from the street with their own eyes as a painting, drawing, photograph or film”. The view from a place that is inaccessible to the general public is not covered.
According to the BGH, recordings of works that were made with special tools such as a ladder, after removing devices that protect the view such as a hedge or through access to a higher private apartment no longer fall under the freedom of panorama. The OLG explains that nothing else can apply to the use of a drone. Even with a benevolent interpretation, the airspace cannot be counted among public paths or squares. Only perspectives of places and facilities “that form part of the earth’s surface” or are “at least permanently and firmly connected” with it may be freely distributed.
The defendant must therefore refrain from reproducing the attacked drone images and pay the plaintiff damages in the form of a license fee of 1824 euros – albeit reduced by the OLG – as well as a good 2000 euros in warning costs plus interest. However, the judgment is not yet final. Since there is still no supreme court ruling on the assessment of drone recordings, the Higher Regional Court allowed the appeal.
The publisher has now appealed to the BGH in the matter. The district court of Frankfurt am Main ruled differently in a similar case on November 25, 2020. According to him, according to the EU Copyright Directive, all that matters is that the work is in a public place. Where it is viewed from is expressly irrelevant. The Frankfurt judges also wanted to close a “gateway for warnings” of aerial photos that users share on social networks. Photos of a light installation in Hamburg had already caused a stir here.
(dahe)
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