The Higher Regional Court (OLG) in Hamm recently published a judgment that stated that the freedom of panorama, which is 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. The Court stated that only recordings and representations privileged are those 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”. Such photos, videos or paintings may therefore not be freely reproduced, distributed, publicly reproduced or marketed.
This decision was made in response to a lawsuit filed by the collecting society Bild-Kunst against a publisher from the Ruhr area, which published the book “Über alle Berge – Der definitive Haldenfuhrer Ruhrgebiet” in two versions. It presented works of art on spoil heaps in the pot. The defendant also used photographs taken with a drone.
The Higher Regional Court relied primarily on the judgments of the Federal Court of Justice (BGH) and stated that 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 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.
The OLG ordered the defendant to 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.
This decision is notable because in a similar case, the district court of Frankfurt am Main ruled differently 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.
