Are drone photos covered by the panorama exemption?

When are images covered by the panorama exemption? In the question whether the panorama exemption also applies to drone photos, the Regional Court (LG) Frankfurt am Main took a position against the view of the Federal Court of Justice (BGH).

An engineering firm disputed with a photographer over allegedly unlawfully produced images. Engineers and architects of the engineering firm designed the "Lahntalbrücke Limburg" in Hesse, which was completed in 2016. The exclusive copyright exploitation rights were contractually granted to the engineering firm.

The photographer produced photographs of the bridge using a drone and published them on his website. Furthermore, he also offered the drone photos for purchase. The engineering firm became aware of these photographs and commissioned the photographer to produce further images. The photographer granted the engineering firm a simple right of use for the images, which only permitted its own use and not the transfer to third parties.

The photographer issued a cease-and-desist letter to the engineering firm after learning that it had passed on the photographs he had created to third parties in breach of contract. The engineering firm in turn issued a cease-and-desist letter to the photographer on account of the allegedly copyright-infringing photographs on his website. Finally, the engineering firm sued the photographer regarding the drone images before the LG Frankfurt a. M. for damages.

Regional Court (LG) Frankfurt am Main on the panorama exemption

The Regional Court (LG) Frankfurt am Main (Judgment of 25.11.2020, Az. 2-06 O 136/20) found no violation of the copyright in the drone aerial photographs. The public making available of the aerial photographs of the bridge was covered by the panorama exemption.

The Regional Court (LG) Frankfurt am Main initially referred to the view of the Federal Court of Justice (BGH). According to this, an aerial photograph of a building is not covered by the panorama exemption because it records parts of the building that cannot be seen from the path, street or square. However, the Regional Court (LG) Frankfurt am Main did not subscribe to this assessment.

Panorama exemption also for drone photos

The court rather took the view that aerial photographs taken by drone are also covered by the panorama exemption, and thus the use of auxiliary means does not speak against the application of this copyright limitation provision.

The directive-compliant interpretation of the provision indicates that what is decisive is merely that the work is located in a public place – which in the case at issue includes the airspace. The location from which the work is viewed is irrelevant. It is equally irrelevant whether the photograph is taken with an auxiliary means.

Furthermore, the technical development of recent years must also be taken into account. For example, if aerial photographs of structures taken from a helicopter were not covered by the panorama exemption, this would create an unacceptable gateway for cease-and-desist letters.

Conclusion

According to the view of the Regional Court (LG) Frankfurt am Main, aerial images taken by drone are also covered by the panorama exemption, provided that the drone is in public airspace. Given the increasing prevalence of drones, it remains to be seen whether the Federal Court of Justice (BGH) will reconsider its hitherto restrictive position.