Aerial Photographs of Copyrighted Works – Limitations of Panorama Freedom by the OLG Hamm
The use of aerial photographs depicting copyrighted works is often the subject of intense legal discussions. With the judgment of June 27, 2023 (case no.: I-4 U 247/21), the Higher Regional Court (OLG) Hamm has redefined essential aspects of the so-called panorama freedom in the context of aerial photography, thereby enabling an intensive examination of its scope in the digital age.
Background of the Panorama Freedom
Fundamentals of the Limitation Regulation in Copyright Law
According to § 59 of the Copyright Act (UrhG), panorama freedom grants the right, under certain conditions, to visually reproduce and distribute works that are permanently located in public ways, streets, and places. The purpose of this regulation is to enable the public’s participation in art in public spaces without obtaining separate consent from the rights holder for each depiction.
Typical Application Scenarios
Traditionally, panorama freedom encompasses photographs, drawings, and films taken from the perspective of a person on the street or in a generally accessible public space. However, in practice, disputes repeatedly arise over the extent to which novel recording techniques – such as images taken from elevated vantage points or particularly from the air using drones – are covered by this freedom.
The Judgment of the OLG Hamm – Essential Grounds of the Decision
Facts and Subject Matter
The legal dispute concerned the distribution of a photograph taken by a drone and published on an online platform. The work, a copyrighted sculpture park, was photographed from an elevated perspective. The rights holders sought an injunction, arguing that this creation was not covered by the panorama freedom.
Judicial Interpretation of Accessibility
The OLG Hamm outlined central standards regarding the feature “from public ways, streets, or places.” According to the court, panorama freedom is not without limits – in particular, it does not authorize taking pictures from positions not typically accessible to the public. Taking the picture from the air represents a form of access that greatly exceeds ordinary perception situations and therefore does not fall under the limitation regulation. In particular, the use of a drone opens up an artificial, technically created perspective that no longer corresponds to the access of an average passerby.
Consequences for the Use of Works
The OLG Hamm clarified that the capture and use of such aerial photographs generally require separate consent from the rights holders unless other statutory permission exists. The limitation only applies if the work can be depicted from a place that is at least fundamentally open to general traffic.
Legal Significance and Implications
Distinction from Modern Technologies
With its decision, the OLG Hamm clearly positions itself regarding new technical possibilities for the use of works. While classic photographs from a standing perspective were primarily relevant in the past, today a multitude of drone and aerial photographs are possible, opening up new lines of sight, contexts, and insights. However, according to the court, the specific technical accessibility should not expand the reach of panorama freedom; rather, the perspective of any traffic participant remains the focus.
Impacts on Cultural Institutions and Copyright Holders
The decision tends to strengthen the protection of copyrighted works in public spaces. Operators of cultural goods, public sculptures, or monuments are thus free to prohibit or license the use of photographs from special perspectives – particularly from the air – for a fee. They gain more control over the economic value of their works, including regarding the commercialization of reproductions, souvenirs, or digital offerings.
Development of Case Law
Looking at the case law of the Federal Court of Justice and other higher courts, it is noteworthy that the line of the OLG Hamm sets high standards for the accessibility and perspective of photographs, but individual case decisions remain necessary. Future technological developments – such as autonomous camera systems or augmented reality applications – could create further need for examination. Additionally, the development of European copyright law, especially the EU Directive on Copyright in the Digital Single Market, must be considered.
Legislative Need for Action and Open Legal Questions
Decisions like that of the OLG Hamm raise the question of whether the legislator should specify § 59 UrhG in light of technological progress. The interpretation of when a “public place” exists in the sense of panorama freedom remains unclear in many cases. Also, international aspects – such as the validity of aerial photographs from abroad and their distribution domestically – are so far only partially regulated.
Conclusion
The judgment by the OLG Hamm marks a significant point for the further development of panorama freedom and its limitations regarding modern recording technologies. For all those who wish to use or exploit works in public spaces, the decision results in considerable creative leeway and new requirements for rights clarification.
For detailed questions related to copyright limitations, the admissibility of photography, and the use of aerial imaging technologies, those interested in the topic can seek legal advice. The attorneys from MTR Legal are available for concerns in this field.
