Current developments on the copyright assessment of aerial photographs taken by drones
With its judgment of October 23, 2024, the Federal Court of Justice (BGH) issued a significant decision regarding the copyright limitations for aerial photographs created using unmanned aerial systems—so-called drones (Case No.: I ZR 67/23). The ruling highlights the high relevance of protecting creative achievements even in the context of technological innovations and the increasing use of airborne devices for both non-commercial and commercial purposes.
Background of the decision
In the present case, the contested use of drones to take photographs of a copyright-protected property was subjected to judicial review. The claimant considered the publication and making available of such aerial images to constitute an inadmissible exploitation of the copyrighted work. The lower courts initially denied any copyright infringement, as they did not consider there to be an encroachment on privacy or ownership rights, nor the special protective effect of copyright.
The BGH, however, first had to decide to what extent a new perspective on a copyright-protected work made possible by drones affects the scope of copyright protection and what consequences this has for the use of these images.
Copyright protection of buildings and property components
Protected work and the significance of individual creative height
Copyright protection, according to § 2(1) No. 4 of the German Copyright Act (UrhG), covers works of architecture in particular, provided that the building in question constitutes a personal intellectual creation (§ 2(2) UrhG). In practice, each case must be examined individually to determine whether a building, a park, or even a combination of various architectural and horticultural elements exhibits the required degree of creative uniqueness. The BGH clarified that the scope of protection is not limited to traditional forms of perception, but also includes innovative means of recording and presentation.
Key distinction: Photography versus freedom of panorama
§ 59 UrhG, the so-called freedom of panorama, generally permits works that are permanently located on public paths, streets, or squares to be photographed and the results to be used. However, this exception does not apply if images are only possible using technical aids from outside the public domain and from protected positions—such as drone flights over private property. The BGH emphasized that the use of drones opens up perspectives that are not available to ordinary passersby on public ground and therefore do not enjoy protection by the freedom of panorama.
Implications for drone images of copyright-protected objects
Permissibility of recording and usage
The court’s decision underscores that the creation and exploitation of photographs taken by drones of copyright-protected properties or other buildings require the express consent of the rights holder, unless relevant statutory exceptions apply. Merely flying around or over an object with a drone does not in itself constitute an infringement of copyright positions. What matters is that producing and distributing image material constitutes an act of exploitation that is capable of making the creative character of the respective work accessible to the public or reproducing it.
Distinction from other legal positions and additional protective aspects
In addition to copyright issues, other rights, such as general personality rights, the right to one’s own image, or property rights, must also be considered when it comes to drone images. In the proceedings at hand, however, the focus was on the copyright perspective. It should be noted that, depending on the individual case, further regulations such as data protection laws or the Air Traffic Act must also be observed.
Practical relevance and outlook
Impact on businesses and individuals
Especially for companies, photo and media agencies, as well as operators of platforms that publish visual content, the current ruling has considerable practical significance. It clarifies that when using modern recording devices such as drones, a differentiated copyright review must be carried out before works of third parties are recorded or used.
Recommendation for legally compliant handling (without specific action advice)
Overall, the ruling shows that the possibilities offered by technological innovations cannot arbitrarily circumvent or undermine copyright protection mechanisms. In this respect, it remains essential—especially in the context of dynamically evolving recording technologies—to carefully evaluate existing protection rights and their limitations.
For detailed information on copyright issues relating to the use of aerial photography, or concerning the interplay between technical innovations and established intellectual property rights, the attorneys at MTR Legal are available as contacts nationwide and internationally.
