The Federal Court of Justice (BGH) has ruled that aerial photographs of copyright-protected works taken using drones are not covered by the freedom of panorama.

What has happened?

The case concerned a book publisher that had published drone images of art installations on spoil tips in the Ruhr region. The artists of these installations, represented by a collecting society, successfully sued against the publication.

What is freedom of panorama?

Freedom of panorama (Section 59 UrhG) is an exception in copyright law that allows works that are permanently located in public spaces to be photographed and distributed. The prerequisite is that the works are visible to the human eye from a public place. The purpose of the regulation is to enable the general public to use such views.

Why does this not apply here?

The BGH ruled that drone images do not fall under freedom of panorama as they offer a perspective that is not normally accessible to the human eye. Previous instances argued that freedom of panorama only applies if works are visible from the natural, human perspective from public places. The decision is based on earlier rulings, such as the Hundertwasser House (2003) and the AIDA kissing mouth decision (2017).

The BGH weighed up the interests of authors in the commercial use of their works against the freedom of information and communication of users. In the case of drone recordings, the interests of the authors prevailed. However, the exact reasoning of the BGH remains to be seen, in particular whether recordings from airplanes or ships may be treated differently.

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