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Federal Court of Justice specifies copyright limits for drone footage
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The question of whether drone recordings of buildings that are protected by copyright are permissible was reassessed by the Federal Court of Justice in a recent decision. The focus was on the commercial use of copyright-protected architectural works in the form of aerial photo and video recordings.
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Reason for the proceedings
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Background and parties involved
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The decision originated from a dispute between the creator of an architecturally extraordinary building and a company that used drones to produce aerial images of that very building and exploit them commercially. The building itself is protected under the Copyright Act (§ 2(1) no. 4 UrhG).
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Point in dispute
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At the center was the question whether the company may, without the consent of the rights holder, produce aerial images and use them commercially. Until now it was generally assumed that photographs of works permanently located in public space are permissible under certain conditions—such as under § 59 UrhG (freedom of panorama).
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Legal situation: freedom of panorama in the context of modern recording technologies
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Relevant provision
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Under § 59 UrhG, depicting works that are permanently located on public roads, streets, or squares is generally permitted. This so-called freedom of panorama legitimizes the creation and distribution of images of these objects, provided that the recordings are made from a location accessible to the public.
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Changed perspectives through the use of drones
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In the present case, however, the defendant company used drones to photograph and film the building from perspectives that would not be reachable without technical aids. The Federal Court of Justice clarified that freedom of panorama sets limits on such recordings: decisive is the place from which the recording is made. A location that is normally not accessible to the general public—particularly the airspace above a parcel of land—does not meet the requirements of § 59 UrhG.
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Reasoning of the Federal Court of Justice
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Protection of the author’s interests
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The Federal Court of Justice emphasized that the scope of copyright protection must not be undermined by novel technologies. Extending freedom of panorama comprehensively to all technically achievable perspectives—especially from the air—would lead to an impermissible restriction of the author’s rights.
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Consequences for photo and film recordings
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Ultimately, the court prohibited the use of drones for film and photographic recordings of copyright-protected works where there is no publicly accessible location within the meaning of § 59 UrhG. This applies in particular to recordings made from elevated perspectives that are otherwise not publicly accessible.
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Impact on companies and exploiters
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This clarification by the Federal Court of Justice affects companies that produce or exploit aerial recordings for commercial purposes. For copyright-protected buildings, it will in future no longer be permissible to document and distribute such works from the air without the appropriate rights/consents. Companies, investors, and real estate stakeholders are required to keep third-party protective rights in mind already during the conceptual phase of image and film productions.
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Further information
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The Federal Court of Justice’s decision (case no. I ZR 193/20) provides significant new legal clarity for all parties involved in commercial urban-art recordings and the commercial use of drones. When assessing similar projects, the scope of copyright protection must still be examined on a case-by-case basis.
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For more in-depth information and individual questions in the context of protecting architectural works and the use of modern techniques such as drones, MTR Legal Rechtsanwälte provides comprehensive support in the field of intellectual property law. Through the legal advice in IP law, clients can make targeted contact.
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