Private copying of unpublished photos permitted

The reproduction of protected works for private use, which is permitted under copyright law also applies to unpublished works. Accordingly, unpublished portrait photographs may be scanned and stored for private purposes.

A portrait artist sued, who had created digital photographs of a customer and his neighbour. She provided printed drafts of the photographs to the neighbour, who ultimately allowed the person depicted to take the prints to his apartment. There, he scanned the prints on which he was depicted and saved the files on his computer.

The portrait artist saw in this procedure an unauthorised reproduction of her photographic works and an infringement of her copyright personality rights, and demanded, among other things, injunctive relief and damages.

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As in the lower court proceedings, the action was also unsuccessful before the BGH.

Decision of the court

The BGH confirmed by judgment dated 19.03.2014 (I ZR 35/13) the decision of the lower court. In its view as well, no rights of the photographer protected by the copyright law were infringed by scanning and saving the photographs.

The BGH initially assumed that the photographs constituted works of fine art or drafts thereof. Although the scanning and saving of the prints infringed the exclusive right of the portrait artist to reproduce her protected photographic works, this infringement was justified by the copyright provision permitting reproduction for private use. This provision should not be interpreted restrictively to the effect that it permits only reproduction of published works. An infringement of the photographer's fundamental right to freedom of art was justified since the private sphere must remain free from claims by the author. Furthermore, it must be taken into account that reproduction of an unpublished work for private or other use does not even indirectly impair the ideational interest of the author to decide himself on the first publication of his work, since the reproductions may neither be distributed nor be used for public performances.

Furthermore, the BGH clarified that the author also has in this case a claim for payment of an appropriate remuneration from manufacturers of devices and storage media, which must be asserted by a collecting society. It cannot be assumed that unpublished or incomplete works remain financially unconsidered in the distribution system of the collecting societies.

Conclusion

In the absence of an infringement of copyright, the photographer has no copyright claims against the user arising from purely private reproduction of his photographs or drafts. According to this, photographic works, whose possession the user has lawfully acquired, may be scanned and stored for private purposes. However, the photographer may assert a corresponding remuneration claim through collecting societies against manufacturers of devices and storage media.