Panorama freedom in architecture model integrated photography?

By virtue of the so-called panorama freedom in Germany, it is permissible for anyone to visually reproduce copyrighted works which are permanently located on public roads, streets or squares, provided no other rights stand in the way. No permission from the author is required for this. Does this also apply if photographs of the corresponding copyrighted works are integrated into architecture models and these are in turn photographed?

An artist created a painting on a remaining section of the Berlin Wall, which bears the title "Hommage an die jungen Generationen" and consists of 16 so-called "head images". The wall section is known as the "East Side Gallery" and is generally accessible to the public.

A real estate agent advertised on her website an image of an architecture model for a real estate project that was to be erected on the land situated behind the "East Side Gallery". The image showed a part of the residential high-rise building and in front of it a model of the "East Side Gallery" with the "head images".

The photograph was produced as follows: A photograph of the mural was taken from the street, reduced in size, printed out, cut to size and glued onto the wall section in the architecture model. Thereafter, a photograph of the architecture model including the "head images" was taken.

The artist took the view that his exclusive right to reproduce and publicly communicate the painting was being infringed and sued for cessation of infringement and reimbursement of costs. The Regional Court (LG) Berlin ruled in his favour. The Court of Appeal rejected his claim.

The decision of the Federal Court of Justice (BGH) on panorama freedom

The artist's appeal wasJudgment of 19.01.2017 – Az. I ZR 242/15 – "East Side Gallery"dismissed.

The BGH rejected a claim for cessation of infringement and reimbursement of costs. Although the real estate agent had reproduced the painting and made it publicly accessible by posting the photograph on the Internet, this use of the work was covered by panorama freedom.

The BGH confirmed that the UrhG not only permits the photographing of a work which is permanently located on public roads, streets or squares, but furthermore permits (including commercial) reproduction, distribution and public communication of the photograph. The judges in Karlsruhe pointed out that the permissible two-dimensional reproduction of the mural by photograph had not been converted into an impermissible three-dimensional reproduction through the combination of an excerpt of the photograph in the architecture model. For an impermissible reproduction of the work in three-dimensional form exists only if, between the photograph and the three-dimensional carrier, there is created not only a purely external, physical connection, but furthermore an internal, artistic connection, so that the photograph does not merely rest on a three-dimensional object, but merges with it to form a unified work. Here only an external connection was established and no three-dimensional work was created.

Conclusion

The application of a photograph of a protected work to a three-dimensional carrier is an impermissible reproduction of the work if, between the photograph and the three-dimensional carrier, there arises an internal, artistic connection, that is, a unified work. What matters is whether the photograph loses its character as a photograph.