Panoramic freedom for works on ships

A copyright-protected work which is permanently located on public roads, streets or places may be copied and distributed almost freely. Whether this restriction of copyright powers also applies to a cruise ship decorated on its side walls with a creative work (AIDA Kussmund) is questionable in view of the ship's mobility and was recently decided by the Federal Court of Justice (BGH). The Federal Court of Justice affirmed panoramic freedom and thus the restriction of the author's rights in this case as well.

The organiser of cruise trips, whose ships are decorated with the so-called "AIDA Kussmund", had filed the action. The motif originates from an artist who has granted the ship owner exclusive usage rights thereto. The aim of the action was to prohibit the organiser of excursions for cruise passengers from using a picture showing the side view of the ship for advertising his services. The motif itself is as applied art incontrovertiblycopyright protected.

The court's decision

The action remained unsuccessful through all instances. Like the lower courts, the Federal Court of Justice (BGH) in itsjudgment of 27.04.2017 (I ZR 247/15 – AIDA Kussmund) proceeds on the assumption that the use of the motif by the excursion organiser does not infringe any rights of the artist or travel organiser. The depicted "AIDA Kussmund" is permanently located on public roads, streets or places within the meaning of panoramic freedom. According to the court's view, this is always the case when the work is freely accessible to everyone from publicly accessible locations. This prerequisite is also satisfied when a work is not stationary and may therefore be located at various public locations. A work is already permanently located at a place if, from the perspective of the general public, it is intended to be there for an extended period.

The artistically decorated cruise ship is permanently located at public places because it is intended to be used for an extended period on waterways and in ports. According to the court's view, it is irrelevant that the "AIDA Kussmund" moves with the cruise ship, even if the latter is temporarily located at non-public places.

Conclusion

Panoramic freedom thus also covers works on and upon vehicles (e.g. advertising) which are used as intended in the public sphere. If the author or the entitled user could thereby prohibit every use without his consent, photographyphotography and filming in public would be excessively restricted. Artists who create works for such a purpose of use must accept that their works may be photographed or filmed without their consent and subsequently distributed in this form.