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Aerial photography using drones can be costly.
The Hamm Higher Regional Court in a recent ruling determined that the publication of aerial photographs of copyright-protected works is not covered by the panorama freedom pursuant to § 59 Paragraph 1 S. 1 Copyright Law. The case demonstrates that modern technology and copyright law do not always go hand in hand.
Boundaries of Panorama Freedom
As per § 59 Paragraph 1 S. 1 Copyright Law, works that are permanently located on public roads, streets, or squares can, for instance, be reproduced and publicly reproduced using photographs. For buildings, this permission only extends to their external appearance.
However, such works must be photographed from the ground, i.e., from public roads, streets, or squares. Aerial photography, especially those made using drones, is not included in this.
The Hamm Higher Regional Court Case
A publishing house released a guide with aerial shots of installations in the Ruhr area. These artworks were publicly accessible, but the shots were made using a drone. One of the affected artists, represented by an association, demanded a cessation and compensation.
The Hamm Higher Regional Court decided in favor of the artist. While the works were protected by panorama freedom, the use of drones for shooting was not included in its scope. The publishing house was sentenced to cessation and also has to pay a compensation of around 2,000 euros.
Comparison with an Older Case
This recent ruling recalls a case from 2003. Here, an heiress of the artist Friedensreich Hundertwasser went against the reproduction of a photo of the Hundertwasser house in Vienna. The shot was taken not from the street but from an upper floor of the building opposite. The Federal Court of Justice made a decision similar to the Hamm Higher Regional Court ruling.
Conclusion
Copyright law is a complex area of law that needs to keep pace with technological advancement. While the panorama freedom allows the reproduction and publication of works in certain public areas, there are limits. And these boundaries can be quickly crossed with modern technologies such as drones. Those considering using aerial photography for commercial purposes should seek legal advice in advance.
