The Federal Court of Justice ruled that drone-captured images of public artworks cannot be published without permission, as the image’s location impacts copyright law. The case involved Bild-Kunst, which sued a book publisher for including aerial photos of art installations from spoil tips in travel guides. The court upheld lower court decisions, stating such images violate artists’ reproduction rights unless taken from publicly accessible locations, thereby prohibiting the publisher from using these photographs.
The Federal Court of Justice has ruled that drone photographs of public artworks cannot be published without proper authorization, emphasizing the significance of the photograph’s location.
The case was initiated by Bild-Kunst, a collective that manages artists’ copyright. They took legal action against a book publisher that included aerial photographs of artistic installations in their travel guides. These installations are situated on spoil tips in the Ruhr area, remnants of coal mining activities. The images in question were captured using a drone.
In deliberations, the Federal Court of Justice (BGH) focused on whether these photographs could be legally shared under copyright laws. Previous court decisions had already ruled against this, and the Federal Court upheld that stance. According to Thomas Koch, the presiding judge of the first civil senate at the BGH, the publication of these photos in the travel guides violated copyright law.
“By featuring the artistic installations in their Halde guides and distributing the corresponding books, the publisher infringed upon the rights of the creators to reproduce and distribute their artistic works,” stated Judge Koch.
Publisher’s Defense
The publisher contended that their photos were protected under the ‘freedom of panorama’ provision. This legal exception allows for the photography of artworks, under specific conditions, as set forth in Section 59 of the Copyright Act. It allows for photos of works that are permanently sited in public spaces, such as streets or paths. Typically, anyone is granted permission to photograph and share these images.
The publisher argued that since the installations are permanently located on the spoil tips, drone photography should be permissible. However, the BGH clarified that the freedom of panorama can only be invoked in limited scenarios, particularly regarding the location from which the images are captured.
“According to established Federal Court of Justice case law, the German legal framework allows for photographs taken from public areas where the artwork is located, capturing the view as it appears to the general public,” Judge Koch explained. “In contrast, it prohibits photographs that display the artwork from areas not accessible to the average person.”
Key Factor: Accessibility of the Location
The crucial factor in this ruling is that the site where the photograph is taken must be accessible to the public. For example, if an artwork resides behind a high wall, out of view from the outside, and is not open to the public, then using a ladder to take a photo would not be allowed. Similarly, using drones to capture images of copyrighted works from inaccessible locations is also prohibited.
Consequently, following this decision, the publisher is barred from further publication of the images and is required to compensate the affected artists.