Commercial use of works in the public domain permissible?

May a photograph of a work in the public domain be used commercially? This legal question had to be decided by the Local Court (AG) Nuremberg in connection with the use of a photograph of a painting by Cäsar Willich that was over 150 years old.

Copyright protection for copyrightable works lasts 70 years. After the protection period expires, the works enter the public domain, meaning that they may then be used freely, including commercially, as no copyright protection exists in them thereafter.

In the case heard before the AG Nuremberg, it concerned the use of a photograph of a painting by Cäsar Willich that was over 150 years old, which is owned by the Reiss-Engelhorn Museum. The museum took a photograph of the painting and permits the use of the image in exchange for a licence fee. At the same time, the museum prohibits its visitors from taking their own pictures of the images displayed in the museum.

Since a photographer was unable to take his own picture of the public domain painting due to this prohibition, he used the museum's image commercially, albeit without entering into a licence agreement with the museum.

Against this, the Reiss-Engelhorn Museum took action, as it saw in the use of the photograph a violation of its photograph rights.

Court decision

The Local Court (AG) Nuremberg held by judgment of 28.10.2015 (Az. 32 C 4607/15) that there is no copyright-related photograph protection for images of works in the public domain.

The AG first establishes that, due to the absence of sufficient creative height, the image is not a copyrightable work but rather a so-called reproduction photograph of a work in the public domain. However, the photograph is a photograph protected in a manner similar to a copyrightable work.

Exceptionally, however, photograph protection must be denied in such cases. It must be taken into account that the museum, as owner, prohibits reproduction of the public domain work. Insofar as an art enthusiast wishes to use reproductions of a painting from the museum's collection, he is thereby dependent on the photographs taken by the owner and is obliged to enter into a licence agreement with the museum. In the final analysis, this circumvents the effect of public domain status after the 70-year protection period expires. Therefore, photograph protection must be denied.

Conclusion

Photograph protection must be distinguished from the non-protectable mechanical reproduction photograph, which, as in the case of simple photocopies, constitutes merely a reproduction of the work photographed.

The Local Court (AG) Nuremberg first establishes that this is such a reproduction photograph. If such a reproduction photograph were assumed, dismissal of the action would be consistent. However, the image cannot then be a photograph with copyright-like protection, as the court subsequently establishes. If photograph protection existed, the Local Court (AG) Nuremberg would have had to grant the action, since the photograph would have to have at least a minimum degree of creativity on the part of the photographer, which would then also be worthy of protection.