Copyright protection for public domain paintings?

Do photographs of public domain paintings taken by photographers enjoy copyright protection, or may these be used freely? The Regional Court (LG) Berlin recently had to decide this question.

The internet platform operator Wikimedia, which also operates the popular internet portal Wikipedia, made available to the public 17 reproductions of public domain paintings through one of its users, which are displayed in the Reiss-Engelhorn-Museen in Mannheim. The photographs were created by the museums' house photographer.

The museums sued the internet portal Wikimedia Foundation Inc. for injunction after the portal had voluntarily not granted an injunction. The Wikimedia Foundation was of the view that it was entitled to display the images of the paintings, which had become public domain through the expiry of copyright protection, on its platform, since photographs of public domain copyright-protected works do not themselves enjoy copyright protection.

Court decision

The Regional Court (LG) Berlin granted the action of the Reiss-Engelhorn-MuseenJudgment of 31.05.2016 – Az. 15 O 428/15 –in that the rights holder of the photographs could rely on the copyright protection of his images. This was always the case insofar as the photographs of the public domain paintings constituted original copyright-protected works with copyright creative height.

In the disputed images, the photographer had made considerable effort to photograph the works of art in the quality necessary for publication in a museum catalogue. To this end, he had to create appropriate lighting conditions in order to produce a colour- and contrast-true reproduction of the paintings.

Conclusion

Even photographs of public domain works enjoy copyright protection if the images are not merely a reproduction of the works.