Freedom of Panorama: Legal Aspects and Practical Implications
The term freedom of panorama might evoke images of picturesque landscapes. However, in legal terms, it refers to the freedom of the street scene. It grants the liberty to artistically or photographically use what is visible in public spaces, all without infringing copyright. This legal concept is crucial for photographers, artists, and businesses alike, enabling the free depiction of public views.
Normally, buildings and works of art enjoy copyright protection throughout the creator's lifetime and for 70 years post-mortem. A strict interpretation of this rule would prohibit photographing modern buildings, such as Hamburg's Elbphilharmonie. Furthermore, using such photos on a commercial website would require the architect's consent. This rigid approach would be impractical, rendering almost every city photograph illegal. Therefore, the exception rule of freedom of panorama exists to prevent such issues.
Key Aspects of Freedom of Panorama
- Freedom of panorama allows you to photograph or film things in public spaces (buildings, works of art) and to use these images freely, even if the objects are protected by copyright.
- In Germany, freedom of panorama is regulated in Section 59 UrhG. It states that “Works on public paths, streets or squares” may be depicted. This applies particularly to architecture (buildings) and plastic art (sculptures) in public spaces.
- Important restrictions: The work must be permanently in this public place (a temporary exhibition on the market square is not covered). Additionally, the photograph must be taken from a public place. This means you are not allowed to climb onto private property to photograph an otherwise hidden work.
- Freedom of panorama means, for example, that tourist photos of skylines or selfies in front of famous buildings can be legally published. You do not need to ask architects or artists for permission. Commercial use is also permitted, such as for postcards or calendars with city motifs.
- This does not include interiors or non-public areas. A painting in a museum is not subject to freedom of panorama as it is not “permanently located on a public way”. Similarly, graffiti on a factory site not visible from a public way cannot be freely depicted.
- Height and aids: It was disputed whether drone photos or recordings from an elevated position still fall under “public way”. In principle, yes, as long as it is still within the usual scope. For example, a drone flying directly over a public road could still apply, but filming over fences becomes critical.
- Freedom of panorama is not a given in all countries. In some, such as France, you may not publish illuminated buildings at night or works of art without further ado. For globally active start-ups, what is legal in Germany can be problematic elsewhere if the content is published there.
Legal Requirements in Germany
In Germany, Section 59 of the Copyright Act states quite succinctly: It is permissible to reproduce, distribute and publicly reproduce works that are permanently located on public paths, streets or squares by means of painting or photography.
Translated, this means that anything visible from publicly accessible places and permanently installed there may be depicted. The images may also be distributed, whether on the Internet, in print, or on film.
“Permanent” usually means: not just there for a short time. A permanently erected monument, a building, or a fountain are considered permanent. However, if an artist only exhibits a sculpture on the town hall square for two weeks, it still enjoys full protection. Freedom of panorama does not apply because the exhibition is not permanent.
“Public paths, streets or squares” means that the location from which the photo is taken must be publicly accessible. Examples of publicly accessible places include a sidewalk, a park, or a public square. A private garden or the inside of a building, where you can only enter with permission, would not be considered public.
Consequence: If you are standing outside and can see a work of art, you may photograph it. However, if the artwork is indoors (even if visible through a window), it is not considered to be “in a public place”. In such cases, you have no automatic right to photograph it.
Practical Examples and Scenarios
- Architecture: A start-up wants to use a photo of the Frankfurt skyline for its website, showing various modern skyscrapers. Thanks to freedom of panorama, this is unproblematic. The architects cannot demand that you make their buildings unrecognizable or pay license fees. Similarly, an influencer can film themselves in front of the Brandenburg Gate and monetize the video – this is allowed.
- Street art/graffiti: This area is more complex. In principle, graffiti on a building wall is a copyrighted work of the sprayer. If it's on a house wall visible from the street, it could be argued that it is permanent (graffiti often remains for extended periods) and in a public place. In many cases, such works are assumed to be covered by freedom of panorama as long as they are photographed from a public space. But beware: There are instances where street artists have taken legal action against the commercial use of their graffiti in photos. Case law is not entirely uniform here, but it usually favors freedom of panorama, provided the graffiti is depicted as part of the cityscape and not isolated as the main motif for commercial purposes. If marketed as a “true-to-the-work” reproduction, it could again be considered unauthorized use.
- Art in the park: A sculpture stands in a public park. A publisher produces an art travel guide and prints photos of this sculpture – this is acceptable under freedom of panorama. However, if the same sculpture was only temporarily part of an exhibition, it would not be allowed without specific permission.
- Interior views: A startup runs a blog and wants to show photos of the interior of famous buildings (e.g., church naves, museum halls). Freedom of panorama does not apply here because interiors are not considered public in the sense of a street. You need permission, usually from the operator or author. Museums, for example, often impose photography bans or restrictions for precisely this reason.
Limits and Potential Pitfalls
Freedom of panorama, as the name suggests, has a generous character. However, certain limits must be observed:
- No Aid Madness: While you can photograph what you see, technical aids should not enable you to perceive more than a regular passer-by. For instance, if a work of art is only visible from an elevated position, such as from a ladder or drone, it might no longer qualify as being on a "public way." Consider the case in Belgium, where drone shots of copyrighted gardens sparked disputes due to restricted freedom of panorama. In Germany, flying a drone over a fence to capture a backyard mural would likely not be covered by this freedom. However, a photo taken from a regular vantage point on the street remains permissible. The widespread use of drones introduces a gray area. Flying within public airspace (e.g., up to 100m high) over public areas might still fall under freedom of panorama, though clear rulings are scarce. Be aware that using telephoto lenses to zoom into areas not visible to a normal observer can become critical. This is especially true if it infringes upon private property, affecting personality and data protection rights rather than copyright.
- Trademarks and Protected Designs: Freedom of panorama specifically refers to copyright. If a street photo includes various brand logos (billboards, neon signs), trademark law could theoretically be affected. In practice, however, the mere inclusion of trademarks as a "dependent component" of the street scene is usually acceptable. You are not using the trademark itself as a trademark, but simply depicting reality. Therefore, do not worry if you capture a Coca-Cola logo within a cityscape photo.
- Personal Rights: Some panorama shots might include people. Here, freedom of panorama does not apply; instead, the right to one’s own image (Art Copyright Act) takes precedence. This means recognizable persons in photos may only be depicted without consent under specific circumstances (e.g., as mere accessories in the background or within large gatherings). This must be checked separately. A photo of a market square may show buildings and statues due to freedom of panorama, but if a single person is clearly recognizable in the foreground, you would need their consent or rely on an exception (e.g., historical context, accessory status). Two areas of law are therefore interwoven here.
- No 3D Scan: A pertinent question is whether freedom of panorama extends to 3D models. Imagine using a laser scan to create and digitally distribute a 3D model of a public statue. Does this count as “reproduction by photographic means”? Likely not. This process might transcend simple reproduction, as it involves creating a digital replica of the work itself. Consequently, specific permission would probably be required. While courts have not definitively ruled on such scenarios, current indications suggest that photographic images are privileged. However, true-to-scale 3D reproductions generally require additional clearance.
- Night Shots with Light Art: In some countries (e.g., France, Belgium), the lighting design of buildings is protected. In Germany, discussions arose regarding the illuminated Brandenburg Gate. Here, freedom of panorama has been invoked, allowing photographers to capture images of the illuminated gate in the evening. The authors of light installations (if considered works of art) could theoretically make claims, but freedom of panorama has been interpreted generously so far: it applies Day and night. The situation differs in Paris: the Eiffel Tower can be photographed by day (it's no longer protected by copyright, having been built more than 70 years ago), but at night, its special lighting is protected. Official postcards of the illuminated tower would therefore require a license. The average German user is often unaware of such peculiar differences, highlighting the need for caution with international content.
International Differences and Global Considerations
For a startup distributing content worldwide, it is important to note that freedom of panorama is not uniformly regulated. It exists in many countries, but with variations. In some, it is completely absent for architecture (Italy has strict rules for cultural monuments). Therefore, a photo you can freely use in Germany might be considered a copyright infringement abroad if published there. In practice, German bloggers are rarely warned by a French rights exploiter, but larger companies should at least be aware of this. Wikimedia, for example, faced challenges when they hosted images of protected buildings in countries without freedom of panorama on their servers.
Conclusion
Freedom of panorama is a very citizen-friendly regulation. It ensures that anything publicly visible can also be photographed and showcased by anyone. For start-ups and creatives, this offers considerable legal certainty concerning city photography, travel reports, and exterior real estate photos. You do not have to obtain permission from every architect. Nevertheless, it is essential to keep an eye on the limits; interiors and non-public areas, in particular, remain off-limits without explicit permission. Overall, freedom of panorama serves as an excellent example of how copyright law incorporates pragmatic exceptions to avoid unnecessarily complicating everyday life, including souvenir photos or advertising images featuring urban backdrops.