Bundesgerichtshof: Freedom of panorama does not apply to all drone footage

It has now been clarified by the highest court: the freedom of panorama enshrined in the German Copyright Act and the EU Copyright Directive of 2001 does not extend to images of protected works taken from the air using a drone. A ruling to this effect by the Higher Regional Court (OLG) of Hamm was confirmed by the Federal Court of Justice (Bundesgerichtshof, BGH) on Wednesday (case reference: I ZR 67/23). The restriction of the creator's exclusive right of exploitation under Section 59 of the German Copyright Act (UrhG) is therefore intended to "exempt the use of works if and to the extent that they are part of the street scene or landscape as perceived by the general public". The view from a place that is generally inaccessible to the public, which the judges in Karlsruhe consider to include heights that are easy to reach with drones, is therefore not covered by the freedom of panorama.

Only license fee slightly reduced

In the case, the collecting society (VG) Bild-Kunst took legal action against a publishing house from the Ruhr region, which publishes several versions of the book "Über alle Berge – Der definitive Haldenführer Ruhrgebiet". The book presents art installations on spoil tips in the Ruhr. The publisher has also used photographs taken with a drone. In 2018, artist Jan Bormann sent VG-Wort copies of the controversial books and pointed out that they contained aerial photographs of his installations "Sundial with geocross" and "Spurwerkturm". The lawsuit, which was initially filed with the Bochum Regional Court in 2021, was joined by other affected artists. The Higher Regional Court of Hamm largely upheld its ruling, but reduced the license fee due slightly to 1824 euros.

The BGH is now essentially sticking to its relevant case law, including based on newly available techniques for creating and distributing photos. It has previously ruled that photographs of protected works taken with special aids such as a ladder, after the removal of privacy-protecting devices such as a hedge or through access to a private home at a higher level are no longer covered by freedom of panorama.

Frankfurt judges ruled quite differently in 2020

The First Civil Senate of the BGH has now emphasized: When interpreting Section 59 UrhG and EU law, a balance must be struck between the freedom of information and communication of work users and the legitimate interest of authors to participate as appropriately as possible in the commercial exploitation of their works. In the case of the use of photographs taken from the air by drones in book publications, this comparison is "in favor of the interests of the authors of the photographed works". Accordingly, photos or videos taken from above by a drone may not be freely reproduced, distributed, publicly reproduced or marketed.

This interpretation also exploits the scope of the EU Copyright Directive "in a permissible manner", explains the BGH. Accordingly, the normal exploitation of a protected subject may not be impaired. Furthermore, the legitimate interests of the rights holder must not be unduly infringed. The Regional Court of Frankfurt am Main had ruled differently in a similar case in 2020. According to it, the Copyright Directive stipulates that the only decisive factor should be "that the work is located in a public place". Where it is viewed from, on the other hand, is irrelevant. The Frankfurt judges also wanted to close a "gateway for warning letters" for aerial photographs shared by users on social networks. Photos of a light installation in Hamburg, for example, caused a stir.

(nie)