Film and photograph recordings in public park subject to charges?

Beautiful gardens, parks and buildings repeatedly serve as backdrops for filmmakers and photographers for their recordings. The Federal Court of Justice (BGH) had to decide to what extent the production and commercialisation of images and films taken in public parks are subject to charges.

The Prussian Palaces and Gardens Foundation has the task of preserving the cultural assets entrusted to it for care, maintaining them and making them accessible to the public. It manages over 150 historic buildings and approximately 800 hectares of garden facilities in Berlin and Brandenburg. The Foundation objected to the fact that photographs and film recordings of the cultural assets managed by it were being produced and commercialised for commercial purposes without its permission. In three separate proceedings, it demanded that a film producer, a photo agency and an internet portal for photographers cease such commercialisation and issued them with costly cease-and-desist letters.

The recipients of the cease-and-desist letters argued that the Foundation's property right was limited to the protection of the physical substance and its exploitation. The photographing of the gardens and buildings and the exploitation of photographs did not constitute an infringement of the property right. Rather, the exploitation right belonged to the authors of the photographs and film works.

Court's Decision
In its judgment of 17.12.2010, Az. V ZR 44/10, 45/10 and 46/10 (Press Release No. 241/2010), the Federal Court of Justice (BGH) decided that the Foundation may prohibit photographs and film recordings of its palaces and gardens made on its premises.

The owner of a property or park may in principle determine whether, when and under what conditions someone may enter his property. To that extent, he has the exclusive right to produce and exploit recordings taken from his property. This applies even if it is not a private owner but, as here, a state foundation under public law.

Something different applies insofar as the film and photograph recordings are taken from a public location without entering the private property. In such cases, the owner must tolerate this and cannot object to its exploitation.
In the present individual cases, however, the internet portal, in contrast to the other recipients of cease-and-desist letters, was not convicted. According to the view of the BGH, the operator of a virtual marketplace must only review the photos offered there if it can identify a violation of intellectual property rights and property rights or other legal violations. In the opinion of the judges, this is not the case here, as it was not apparent from the images of buildings and garden facilities on the internet portal whether they were taken without permission or not.

Conclusion

When selecting locations for photoshoots and filming locations, care must always be taken to ensure whether the places from which the recordings are made are in private ownership. If this is the case, appropriate permissions must be obtained from the owner of the property or building. We are happy to advise you in this regard, obtain the necessary permissions and draft and negotiate appropriate usage agreements with the owners.