Drone footage and panorama freedom: a legal about-face

Introduction: What is the freedom of panorama?

The freedom of panorama, also known as street image freedom, is a central concept from copyright law. It allows anyone to photograph or film buildings and works of art that are permanently positioned on public paths, streets or squares. This also includes the publication and distribution of these recordings, whether in print media, on the Internet or in television broadcasts.

In Germany, freedom of panorama is laid down in Section 59 of the Copyright Act (UrhG) and represents an important exception to the basic protection of copyright. It allows the cityscape and public landscape to be captured and shared in their current form without the need to obtain permission from the creators or owners of the works depicted.

However, it is important to note that the freedom of panorama only applies to works that are “permanently” located in public places. This means that temporary installations or exhibitions are generally not covered by the freedom of panorama. Likewise, interiors of buildings, even if they are publicly accessible, are generally not covered by the freedom of panorama.

Freedom of panorama is an important aspect of the balance between the protection of the rights of authors and the public interest in the free use and circulation of images and recordings of public space. It allows us to document and share the visual culture of our cities and communities without running afoul of copyright laws.

Frankfurt Regional Court: Drone footage falls under the freedom of panorama

In 2020, the Frankfurt Regional Court issued a remarkable ruling stating that freedom of panorama also applies to aerial photography using drones. The case involved a drone image of a property that was taken and published without the owner’s consent. The court ruled that such photographs are covered by the freedom of panorama as long as they are taken from a public place and the object depicted is visible from there.

However, this decision raises new questions, particularly with respect to other types of recordings. One example is footage taken from boats. Although a boat may be on public waters, it is unclear whether such shots are covered by the freedom of panorama. This depends on whether the water is considered a public place under the Copyright Act, which has not yet been conclusively determined.

In addition, the Federal Court of Justice (BGH) has already ruled that photographs taken from a ladder are not covered by the freedom of panorama. The BGH argued that the freedom of panorama only covers the perspectives that a normal pedestrian has from the ground. Using a ladder to gain a higher perspective goes beyond what the freedom of panorama allows. Photographs taken from a window are therefore also not covered by the freedom of panorama.

These cases show that the application of the freedom of panorama in practice is often complex and depends on many factors. They also emphasize the need for clear and consistent case law in this area to ensure legal certainty for photographers and other creators.

Hamm Higher Regional Court: Drone footage does not fall under the freedom of panorama

In April 2023, the Higher Regional Court of Hamm ruled in a landmark decision that drone footage is not covered by the freedom of panorama. The case concerned a legal dispute between the collecting society Bild-Kunst and a publisher from the Ruhr area. The publisher had published drone photos of artworks on tailings piles in the Ruhr region in two books without acquiring a license from the collecting society.

The court ruled that the freedom of panorama only includes perspectives that exist from public ways, streets or squares. It clarified that the airspace is not part of it. The use of aids such as drones to obtain a different perspective is therefore not covered by the freedom of panorama.

In its reasoning, the court emphasized that the freedom of panorama is an exception to copyright and must therefore be interpreted narrowly. It pointed out that with the freedom of panorama, the legislator intended to allow only the gratuitous use of perspectives that exist from public ways, streets or squares. The airspace is not part of this.

The court also noted that the use of drones provides a completely different perspective than that which a pedestrian has from the ground. It argued that allowing the use of such perspectives would go far beyond what the legislature intended with the freedom of panorama.

In addition, the court pointed out that the Federal Court of Justice has already ruled that the use of a ladder is not covered by the freedom of panorama. It saw no reason why the use of a drone should be any different.

This decision by the Higher Regional Court of Hamm marks a significant turnaround in the case law on freedom of panorama and has far-reaching implications for the use of drone footage. It underscores the need for a careful balance between the rights of creators and the interests of the public in the use and dissemination of visual material.

Conclusion: Legal consensus?

Despite the decision of the Hamm Higher Regional Court, the last word has not yet been spoken on this matter. Since there is still no supreme court case law on drone photography in the context of freedom of panorama, the court allowed the defendant’s appeal. The defendant has appealed to the Federal Court of Justice, so the judgment of the Higher Regional Court of Hamm is not yet final. It remains to be seen how the Federal Court of Justice will rule on this matter. Until then, the legal situation regarding drone footage and panorama freedom remains unclear.

Interestingly, I came across the OLG Hamm ruling while doing research on the newly announced “Blender Earth Modeller Add-on”. This add-on, featured in a YouTube video, allows you to integrate 3D city and terrain models from almost anywhere in the world into Blender projects. It represents an impressive development in the world of 3D modeling and has the potential to revolutionize the way we create and interact with digital environments.

However, the legal implications, especially with regard to freedom of panorama, could be complex for computer game developers and other users of the add-on. While the use of satellite imagery and similar data sources is in many cases governed by appropriate licensing agreements, the use of drone imagery and other forms of aerial photography could present legal challenges. This is especially true in countries like Germany, where case law regarding panorama freedom and drone footage is still evolving.

I plan to present these and other issues in a future article.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.