The so-called ‘freedom of panorama’ allows anyone to photograph publicly visible buildings, paintings and other works of art from the public space and to utilise the photographs.
The legal framework for photographing works protected by copyright in public spaces has been further clarified by a recent ruling of the Federal Court of Justice (BGH). on 23. October 2024, the BGH handed down a ruling (I ZR 67/23) that relates in particular to the use of drones and aerial photography. Despite technical progress, such measures are not permitted without the author’s consent.
What is freedom of panorama?
Freedom of panorama is a copyright restriction that allows works that are permanently located in the public street or landscape to be photographed or filmed and these images to be published without the author’s consent. This provision is enshrined in Section 59 (1) sentence 1 UrhG. The purpose of freedom of panorama is to facilitate access to art in public spaces and to enable wider use by the public. Art’ includes all works that have been created artistically, such as paintings or statues. However, it also includes buildings that are not just products of pure craftsmanship, but are considered personal intellectual creations and stand out from the mass of everyday building work.
The case before the BGH
The BGH case in question concerned various art installations on spoil tips in the Ruhr area. The defendant had published drone images of the installations in travel guides to these slag heaps. The plaintiff demanded injunctive relief and damages.
The Federal Court of Justice confirmed the judgement of the lower courts and ruled that the drone images do not fall under the freedom of panorama according to Section 59 (1) sentence 1 UrhG. The basic statements are important for many types of photography using technical aids:
- Freedom of panorama only applies to works that can be seen from publicly accessible places. It does not permit photographs taken with the aid of drones or other special equipment in order to capture perspectives that are not normally accessible to the general public.
- It is also necessary to weigh up the users‘ freedom of information and communication against the authors’ legitimate economic interests. The BGH clarified that in the present case, the protection of the economic interests of the authors takes precedence, as drone recordings offer special perspectives that are not comparable to the perception of everyone in public space.
Consequences for users of photos
In future, photographers and publishers, but also other commercial users, must ensure that photographs above a superhuman floor height require the consent of the author, e.g. the architect, even if they were taken by means that are now subject to technical progress.
The publication of such images can trigger copyright claims such as injunctive relief and claims for damages. It is therefore advisable to carry out a legal check before using drone images, for example, or to obtain appropriate licences from the rights holders, unless the works of art are already in the public domain, which is the case from 70 years after the death of the author.
Data protection supplements
In addition to the copyright restrictions, data protection and privacy regulations must also be observed. Photographs or videos of persons may only be published with the express consent of the persons concerned. Exceptions would be events or persons of contemporary history as well as recordings with persons as accessories if the public’s interest in reporting prevails. When using drones in particular, there is a risk of unintentionally capturing private areas or people, which could result in legal claims for injunctive relief.
Conclusion
The judgement of the BGH continues the previous case law to the extent that only photographs that correspond to the human perspective are privileged. All users of such photos should bear this in mind. The rights of authors, for example of buildings, remain quite extensive even after the new BGH ruling and require close scrutiny. It remains to be seen what requirements the case law will subsequently impose on satellite images from large cartography service providers.
