Maground GmbH (hereinafter referred to as ‘Maground’) operates an image agency specialising in background images for commercial product presentations. Many of these images are photographs depicting natural sceneries as well as urban spaces. Some are also interior shots, e.g. of garages or rooftops.
What copyright and property law restrictions apply to Maground using the aforementioned photographs for its business purposes?
Under German law, it must be assumed that any buildings and also many other man-made structures are protected by copyright until 70 years after the death of the architect. This means that the use of photographs showing ‘modern’ buildings for commercial purposes requires the consent of the architect. An exception (‘freedom of panorama’) applies if the photographer took the picture standing on a public street.
In addition, the commercial use of photographs taken on private property require the consent of the landowner irrespective of the image subject. Other countries have similar rules. It must be noted that there is no freedom of panorama in many countries (e.g. in France), so the use of all photographs showing ‘modern’ buildings requires the consent of the architec.
In many countries, the principle of freedom of panorama applies. Rights of third parties to any background works (buildings, skultracks, etc.) are therefore only needed if the principle of freedom of panorama for the respective image material should not apply. You can find further innovations here (link) and here you will also find an overview of which countries generally apply this principle (https://en.wikipedia.org/wiki/Freedom_of_panorama).
This memorandum covers both copyright and property laws. It must be noted that the use of a photograph in a certain country falls under the law of that country (territoriality principle). Legal analysis
The objects depicted in the photos may enjoy copyright protection. This applies in particular to so-called works of the fine arts, which include works of architecture (sec. 2(1)(4) German Copyright Act (Urheberrechtsgesetz, UrhG)). However, not every building enjoys copyright protection because it is not ‘personal intellectual creation’ (persönliche geistige Schöpfung).
Copyright law only protects what achieves a certain ‘creative’ level and which is not a copy of something pre-existing.1 The requirements for this so-called ‘threshold of originality’, however, are generally set very low for works of architecture under German copyright law. In case of doubt, it should therefore be regularly assumed that a building enjoys copyright protection.
In order to do so, it must ‘stand out’ from other buildings in terms of design. Also, the design of the building must not be based solely on its function (e.g. as a residential, administrative or factory building). However, it will practically only be possible to determine whether a specific building enjoys copyright protection in an individual case if the alleged author sues for copyright infringement in court. The question of whether a building enjoys copyright protection is therefore associated with considerable imponderabilities, since the judge's assessment as to whether a building is a ‘personal intellectual creation’ can also be rather subjective.
Garden design can also be regarded as a protected work of fine art, as it is frequently found in public spaces, provided that it contains design features.2 Monuments, fountains, sculptures, reliefs and murals may also be found in public spaces as works of fine art capable of protection.3 In addition to works of fine art, which also include works of architecture, works of applied art also enjoy copyright protection pursuant to sec. 2(1)(4) UrhG. These are characterised by the fact that, unlike works of fine art, they also have a practical use.
If copyright protection of a work can be assumed, the author has the exclusive right to exploit it in physical or non-physical form (sec. 15 UrhG). The right of reproduction regulated in sec. 16 UrhG as well as the distribution right under sec. 17 UrhG are subject to the physical exploitation right. Sec. 16(2) UrhG clarifies that the production of photographs constitutes an act of reproduction reserved to the author. If the photographs are offered to the public or placed on the market as copies, this constitutes an act which is subject to the author's distribution right (sec. 17(1) UrhG). If the photographs are made available on the Internet for anyone to retrieve, this is a matter of making them publicly accessible within the meaning of sec. 19a UrhG. This right also belongs solely to the author. It follows from this that it is not permitted for a picture agency to take photographs or moving images of copyrighted works and/or to make them physically or immaterially accessible to the public without a corresponding granting of rights by the author (see secs. 31 et seqq. UrhG)
Under German law, an important exception to the protections of works in public spaces described above is so-called freedom of panorama in sec. 59 UrhG. According to this rule, it is permissible to reproduce, distribute and make available works protected by copyright which are permanently located on public paths, streets and squares, e.g. by means of photographs or films. In the case of buildings, it should be noted that panoramic freedom only extends to the external view of the building (sec. 59(1)(2) UrhG). Courtyards are also not covered. Public paths, streets and squares are those that are freely accessible to everyone, regardless of whether they are publicly or privately owned. It is not necessary for the work itself to be publicly accessible, but it is sufficient that it can be viewed from a generally accessible location. It should be noted that freedom of panorama only applies if the photographed or filmed work is freely visible from this generally accessible location. Such free visibility is not given if it can only be achieved by means of aids (e.g. ladders) or by eliminating obstacles that obstruct the view. It is disputed whether a perspective that can only be produced with a telephoto lens is also covered by freedom of panorama, or whether such a lens must be regarded as an inadmissible ‘aid’. Also, perspectives that require access to a non-public property are not covered by freedom of panorama. The same applies to aerial photographs taken with the aid of drones, for example.9 But even if the owner of a piece of land allows it to be generally accessible, their right of ownership nevertheless entitles them to prohibit the taking of photographs (see also below). Finally, freedom of panorama requires that the copyrighted work is permanently accessible to the general public, and not just temporarily visible from a public place.
The right to produce and use photographs and videos may also be restricted by the owner of the object in question. Property rights also apply to objects for which there is no copyright protection. Under sec. 903 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a landowner is entitled to regulate access to their property. Just as they can prohibit access to the property altogether, they also have the right to allow access, but prohibit the taking of photographs. In addition, the exploitation of any photographs that have been taken in violation of such a restriction is regarded as a violation of property rights by the German courts. On the other hand, just as under freedom of panorama, a landowner cannot prohibit photographs from being taken from a generally accessible location. Insofar, the principles described above apply as well. To be clear, even if a landowner has permitted access to a property and the taking of photographs, the commercial distribution of the photographs made still requires the landowner's consent.