According to a ruling of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, even if works of art are no longer protected by copyright, taking pictures and publishing photos of them may be in breach of copyright.

70 years following an artist’s death, his or her works are no longer protected by copyright. We at the commercial law firm GRP Rainer Rechtsanwälte note that this means they are in the public domain and meant to be available for use by anybody. However, it is clear from a ruling by the BGH from December 20, 2018 that this does not necessarily give someone carte blanche to publish photos of these works of art on the internet (Az.: I ZR 104/17).

The case in question began with a museum filing a lawsuit. The museum had displayed pictures that were in the public domain, subsequently had them photographed and later published them in a catalog. The photographer had assigned the publication rights to the museum. Moreover, the museum had expressly prohibited visitors from taking pictures of the paintings on display.

Notwithstanding the prohibition, the defendant took pictures of the works of art in the museum and published them on an online encyclopedia. He also scanned photos from the museum catalog and uploaded these to the internet as well. The BGH ruled that in doing so the man had, on the one hand, violated the ban on photography that he was required to comply with pursuant to a contractual agreement with the museum, and, on the other hand, was in breach of copyright.

By publishing the pictures scanned from the catalog online, the defendant was found by the BGH to be in breach of copyright. The BGH also held that a photograph of a painting enjoys protected status as a photograph, reasoning that the photographer has to make a number of decisions when taking the photograph regarding its presentation, e.g. with regards to location/position, lighting, distance, angle, cut, etc. The Court concluded that this represented a kind of personal intellectual effort worthy of protection.

The BGH went on to state that the defendant should not have taken his own photos in the museum, as this was in violation of the ban on photography that he was required to comply with as per the contractual agreement and which formed an operative part of the general terms and conditions. The museum was therefore entitled to obtain injunctive relief.

Copyright infringements may give rise to formal warnings as well as claims for injunctive relief or damages. Lawyers with experience in the field of IP law can advise on matters pertaining to copyright law.