Protection of reproduction photographs of works in the public domain

Are reproduction photographs of artworks in the public domain protected by copyright or not? The dispute entered another round before the Higher Regional Court (OLG) Stuttgart.

The City of Mannheim operates the Reiss-Engelhorn Museum. It sued a private individual who had taken photographs in the museum in 2007 and had uploaded both these photographs and scanned photographs taken by an employee of the City of Mannheim to Wikipedia's media database – Wikimedia Commons. The photographs depicted exhibition objects owned by the City of Mannheim. The exhibition objects themselves were so-called works in the public domain, that is, they were no longer protected by copyright after the expiry of the protection period.

The Regional Court (LG) Stuttgart had prohibited the public making available of the uploaded images (we reported).

The defendant thereupon filed an appeal. He is of the opinion that mere reproduction photographs cannot be regarded as photographic works within the meaning of the UrhG. The reproduction photographs are not capable of copyright protection. Furthermore, he argues that the public domain status is being circumvented.

The Court's Decision

The Higher Regional Court (OLG) Stuttgart largely upheld the judgment of the Regional Court (LG). By judgment dated 31.05.2017 – Az. 4 U 204/16 (Court notification) – it established that the scanned and uploaded photographs were to be regarded as photographic works within the meaning of the UrhG and not as mere technical reproduction. The Stuttgart judges are furthermore of the opinion that the public domain status of the depicted works does not affect the protection of photographic works.

With regard to the photographs taken and uploaded by the defendant himself, the court also affirmed the City of Mannheim's claim for injunctive relief. The court pointed to the case law of the Federal Court of Justice (BGH). According to this, the exclusive right to produce and exploit photographs of buildings and gardens belongs to the property owner, insofar as these images were taken from his property. The court applied these principles to moveable objects, here the exhibition pieces. Moreover, the defendant had been prohibited in the viewing agreement from taking photographs in the museum.

Conclusion

Even reproduction photographs of works in the public domain are protected by copyright. However, the judgment is not final. A cassation appeal is pending before the Federal Court of Justice (BGH). It therefore remains to be seen whether the BGH will uphold the judgment from Stuttgart.