In its ruling on art law dated 23 October 2024, the Federal Court of Justice (BGH) ruled that aerial photographs of copyright-protected art installations taken with the aid of drones violate the freedom of panorama pursuant to §59 (1) sentence 1 of the German Copyright and Related Rights Act (UrhG) (I ZR 67/23).
The facts
Various artists had created large art installations on old mining dumps in the Ruhr region. These included the installations „Sonnenuhr mit Geokreuz“ by the artist Jan Bormann, „Nachtzeichen“ by the artist Klaus Noculak, „Himmelstreppe” by the artist Herman Prigann and „Tetraeder“ by the artist Wolfgang Christ.
The defendant, a publishing house, had published books on the subject of „slag heaps in the Ruhr area“. In addition to landscape photos, the publisher had also published photos of the art installations. These were taken from the air with the aid of drones.
Drones are unmanned flying objects that are used in particular to take aerial photographs from a „bird's eye view“.
The collecting society Bild-Kunst, which administers the rights and claims of the artists concerned with regard to the art installations, then took legal action against the publisher and demanded injunctive relief and damages in accordance with §97 (1) sentence 1 and (2) UrhG.
This would constitute an infringement of the artists' copyright. This is because the publication of the photos interferes with the right to publish and distribute the works to which the artists alone are entitled under copyright or art law.
„It annoys me that people take pictures of my artworks from the air and then publish them. I then reported it because I have to get paid for it." Says the artist Jan Bormann.
In particular, the courts had to clarify whether the publication of the drone photos fell under the exception of freedom of panorama. In art law, the legal situation with regard to drone photos has not yet been clarified by the highest court.
Course of the proceedings
At first instance, the Bochum Regional Court (LG Bochum) ruled in favour of the art law claim in its entirety. After an unsuccessful appeal, an appeal on points of law was authorised.
The competent Higher Regional Court of Hamm (OLG Hamm) dealt in particular with the existence of the conditions for freedom of panorama pursuant to §59 (1) sentence 1 UrhG. The appeal against the judgement of the Higher Regional Court of Hamm was unsuccessful.
The BGH awarded the artists damages, among other things, and ordered the publisher to cease and desist pursuant to §97 (1) sentence 1 and (2) UrhG. The publication of the drone photos unlawfully infringed the artists' copyright.
Copyright in art law
The purpose of copyright in art law is to protect the creative aspect of the author's intellectual creation as a cultural right. Above all, the protection of creative achievements in art law should be guaranteed.
In art law, copyright stands alongside industrial property rights such as patent, design and trade mark law. If the work is a personal and intellectual creation of a person, copyright protection arises directly and free of charge.
What does copyright protection entail?
Copyright in art law uniformly protects the realisation of the author in his work as a „personal intellectual creation“ in accordance with §2 (2) UrhG. Thus, copyright protection in art law is based on so-called monism.
This means that copyright has two sides, the personal rights and the property right (with its commercial exploitation rights). The special personality right of the author is inherent in both as a basic right.
Both form an „inseparable unit“ and are, as the legislator described it in 1965, „intertwined in many ways“ (BT-Drucksache IV 270, p. 43). The special personality right in art law is also not transferable between living persons and remains inseparably linked to the author (cf. §29 (1) UrhG).
As long as the copyright exists and there is no legal restriction such as freedom of panorama or a right of use, the work may not be utilised by others without consent.
The moral rights of the author
The moral rights of the author protect in particular the ‘intellectual and personal relationship of the author to his work’ in art law (§11 sentence 1, §§12ff. UrhG).
Firstly, this includes the right to publication (cf. §12 (1), 6 (1) UrhG). With this norm in art law, the law takes account of the fact that the author exposes himself to public criticism and can therefore decide whether to make his work accessible to the public.
The author's free decision as to whether he wishes to recognise or deny his authorship is also protected (§13 sentences 1 and 2 UrhG).
In addition, he is granted the right to prohibit impairments such as the distortion of his work (§14 UrhG). According to this, the author can defend himself against third parties giving his work an „aesthetic effect“ that he did not intend (BGH, 9 November 2023 - I ZR 203/22).
The exploitation rights
The exploitation rights protect the author with regard to the commercial use of the work in accordance with §15 et seq. UrhG. At the same time, they ensure "reasonable remuneration for the use" (cf. §11 sentences 1 and 2 UrhG).
The law stipulates in §15 (1) UrhG that the author has the exclusive right to exploit his work in physical form. In principle, however, they can also be granted to third parties (§31 et seq. UrhG).
This right includes, in particular, the right of reproduction (§16 UrhG) and the right of distribution, which allows the author to place the work or reproductions on the market and offer it to the public at his own discretion (§17 UrhG).
The exhibition right is also included, which allows the work or reproductions to be displayed publicly (§18 UrhG).
In addition, the author has the exclusive right of public reproduction under art law pursuant to §15 (2) UrhG. This means that he may publicly reproduce his work in a non-physical form.
This refers in particular to the right of presentation, performance and demonstration (§19 UrhG), the right of making available to the public (§19a UrhG), the right of broadcasting (§20 UrhG), the right of reproduction by means of image or sound carriers (§21 UrhG) and the right of reproduction of radio broadcasts and making available to the public (§22 UrhG).
Statutory limitations of copyright
However, there are legal limitations to copyright and art law. Only in this way can a balance be struck between the author's interest in participating in the commercial utilisation of the work and the public's interest in information and communication of the work.
In certain cases, the law allows use without permission and without remuneration. This also applies in the case of freedom of panorama pursuant to §59 (1) sentence 1 UrhG.
The decision of the BGH
The BGH considered the publication of the drone photos to be an unlawful infringement of the artists' reproduction and distribution rights under copyright and art law (§15 (1) No. 1, 2 in conjunction with §§16, 17 UrhG). This is because the art installations were reproduced visually by being published as photographs. The distribution of the books constitutes a distribution.
The art installations depicted are indisputably works of fine art protected by copyright under art law (§2 (1) number 4, (2) UrhG).
Like the OLG Hamm, the BGH had to deal in particular with the question of whether this was a permitted use within the scope of freedom of panorama pursuant to §59 (1) sentence 1 UrhG.
Freedom of panorama and drone photos
Freedom of panorama allows works that are “permanently located on public paths, streets or squares to be reproduced, distributed and publicly reproduced by means of painting or graphics, photographs or film”.
This regulation is applied in copyright and art law when works of art are dedicated to the general public through permanent erection or installation in public places.
Freedom of panorama is intended to ensure that publicly accessible places remain free from copyright prohibition rights in the interests of freedom of information, communication and action. Anyone should be able to depict works there and exploit these images.
The BGH initially determined that the photographs are generally covered by the freedom of panorama. This is because the art installations on old mine dumps are accessible to everyone and can be seen from public paths, streets and squares.
However, the BGH ruled that only those photographs of a work protected by copyright in art law are protected by the freedom of panorama that are created from perspectives that are accessible to the „general public”.
This does not include places that are not accessible to the „general public” or are not accessible without special technical aids such as drones.
Drone photos are therefore not covered by the purpose of freedom of panorama. This is because airspace that can only be reached with the aid of an aircraft is considered to be more generally accessible and public space.
Interpretation with regard to Union law
Article 5(3)(h) of the Directive on the harmonization of certain aspects of copyright and related rights (2001/29/EC) forms the legal basis under EU law for freedom of panorama in national law.
The interpretation of the BGH must therefore be in line with the leeway granted under EU law. The BGH emphasized that its interpretation of the freedom of panorama, according to which drone shots are not covered by the freedom of panorama, exhausts this leeway in a permissible manner.
In particular, it weighed up the public's freedom of information and communication against the author's „legitimate interest in participating appropriately in the commercial exploitation of the work” in an appropriate manner.
It is true that the purpose of freedom of panorama in copyright and art law is to enable everyone to use works that are permanently located in public places. However, the art installations were made from a perspective that was not accessible to the public or not accessible without special aids. Therefore, the public interests did not weigh heavily.
The interests of the author prevailed. In particular, because he was to receive an appropriate economic share of the commercial exploitation through the publication of the book.
Resumé
With its judgement, the BGH strengthens copyright law and clarifies the freedom of panorama. It clarifies that drone shots of art from perspectives that are not publicly accessible are not covered by freedom of panorama and thus further protects the interests of authors in the commercial exploitation of their works.
„Copyright law remains an effective protective shield for creative works against unauthorised commercial exploitation. Also when it comes to new technical possibilities." Says dtb-founding partner and art law expert Dr. Pascal Decker.
Status 04.06.2025