The Federal Court of Justice (BGH) has ruled that aerial photographs of copyrighted works taken using drones do not fall under the freedom of panorama.

What happened?

The case involved a book publisher that had published drone footage of art installations on mine tailings in the Ruhr region. The artists behind these installations, represented by a collecting society, successfully sued to stop the publication.

What is freedom of panorama?

The "freedom of panorama" (§ 59 UrhG) is an exception under copyright law that permits the photographing and distribution of works that are permanently located in public spaces. The prerequisite is that the works must be visible to the naked eye from a public location. The provision is intended to enable the general public to make use of such views.

Why doesn't this apply in this case?

The Federal Court of Justice ruled that drone footage does not fall under the freedom of panorama, as it offers a perspective that is not normally accessible to the human eye. Lower courts had argued that the right to a panoramic view applies only when works are visible from public places from a natural, human perspective. The decision is based on earlier rulings, such as those regarding the Hundertwasser House (2003) and the AIDA “kissing mouth” case (2017).

The Federal Court of Justice weighed the interests of copyright holders in the commercial exploitation of their works against users’ freedom of information and communication. In the case of drone footage, the interests of the copyright holders prevailed. However, the Federal Court of Justice’s exact reasoning remains to be seen, particularly whether footage taken from airplanes or ships might be treated differently.

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