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And another BGH decision today, shortly before Christmas. However, it is not really a surprise 😉
Thus, the latter ruled that photographs of (public domain) paintings or other two-dimensional works would regularly enjoy photographic protection under Section 72 UrhG.
The Senate further ruled that the owner of a municipal art museum may claim damages from a visitor who takes photographs of works exhibited in the museum and makes them publicly accessible on the Internet in violation of the prohibition on photography agreed in the viewing contract by means of general terms and conditions.
The defendant was/is active on Wikipedia and uploaded photographs to Wikimedia Commons. These works were all in the public domain, i.e. no longer protected by copyright due to the expiry of the protection period.
The BGH agreed with the opinions of the lower courts and rejected the photographer’s appeal. According to this, the uploading of the scanned images from the museum’s publication was an infringement under § 97 para. 1 sentence 1 UrhG, § 72 para. 1 UrhG, § 19a UrhG. The photograph of a painting enjoys photographic protection under Section 72 para. 1 UrhG. In making them, the photographer has to make decisions about a number of creative circumstances, including location, distance, angle of view, exposure, and framing of the shot. For this reason, such photographs regularly – as in the case in dispute – achieve the level of protection required under Section 72 (1) of the German Copyright Act. 1 UrhG required minimum level of personal intellectual achievement.
So scanning from a museum catalog was not a good idea.
Actually, if at all, only the second circumstance was still in dispute, namely the photos that had been taken on the occasion of a visit to a museum, during which the photographer had violated the contractually agreed ban on photography. The BGH ruled that the museum was liable for damages for breach of contract (in this case, the terms of use as GTC) pursuant to § 280 para. 1, § 249 para. 1 BGB (German Civil Code) that the photographer refrain from making the image recordings publicly accessible by uploading them on the Internet.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
