Photographs of public domain works

The Federal Court of Justice (BGH) confirms that even photographs of public domain paintings or other two-dimensional works are regularly protected by copyright.

In 2007, a private individual took photographs in the Reiss-Engelhorn-Museum in the city of Mannheim – despite a prohibition on photography.

He uploaded these photographs and scanned photographs of an employee of the city of Mannheim to the media database of Wikipedia – Wikimedia Commons. The photographs depicted exhibition objects owned by the city of Mannheim. The exhibition objects themselves were so-called public domain works, i.e. they were no longer protected by copyright after the expiration of the protection period.

In 2016, the Regional Court (LG) Stuttgart prohibited the public making available of the uploaded images (we reported).

The Higher Regional Court (OLG) Stuttgart confirmed the first instance judgment largely by judgment of 31.05.2017 – Az. 4 U 204/16 (we reported).

The decision of the BGH on photographs of public domain works

The revision by the defendant was unsuccessful. The BGH rejected the revision by judgment of 20.12.2018 – Az. I ZR 104/17 (Press release).

The BGH based the copyright infringement caused by uploading the scanned images from the publication of the city of Mannheim on the photographic protection which a photograph of a painting regularly enjoys – regardless of the public domain status of the photographed painting. In the production of the photograph, the photographer had namely to make decisions on creative circumstances, for example the location, the distance or the exposure.

Furthermore, the judges in Karlsruhe affirmed a right to cessation also in relation to the photographs produced by the defendant himself. They derived this from the contractually agreed prohibition on photography.

Conclusion

The BGH confirmed that the publication of photographs of public domain works of art can be contrary to copyright.

A right to cessation with respect to specially produced photographs of public domain works of art can be derived from an agreed prohibition on photography.