Concept and Definition of Exhibition Right
Das Exhibition Right refers to the civil law right to publicly display or make accessible a copyrighted work. This right is particularly relevant in connection with works of art, photographs, drawings, paintings, sculptures, and other works of visual art. The exhibition right is an independent exploitation right under copyright law and is one of the so-called exclusive rights of the author. It governs who has the right to physically show the original of a work in public.
Legal Foundations
Exhibition Right under the Copyright Act
The exhibition right is legally regulated in Germany in the Copyright Act (UrhG) . The key provision is § 18 UrhG, which states that only the author has the right to publicly exhibit the original of a work of visual art.
§ 18 UrhG:
“The right to publicly exhibit the original of a work of visual art belongs exclusively to the author.”
For photographic works, the exhibition right follows from § 18 in connection with § 19 UrhG, and for other types of works, it is governed by specific statutory regulations.
Distinction from Other Exploitation Rights
The exhibition right is to be distinguished from the right of public accessibility (§ 19a UrhG) and from the performance and broadcasting rights. While the exhibition right relates to showing the physical work, the other rights refer to transmitting or presenting the work on screens, on television, or online. Exhibiting an original is not a public communication in the technical or digital sense.
Content and Scope of the Exhibition Right
Subject Matter of the Exhibition Right
The exhibition right refers to originals of physically existing works, especially of visual art, such as
- paintings,
- drawings,
- sculptures,
- photographs,
- graphics,
- installations.
Copies or reproductions, unless they themselves constitute copyrighted works, are generally not covered by the exhibition right.
Public Exhibition
A public exhibition occurs when the work is physically presented to an indeterminate number of people. Typical cases include exhibitions in museums, galleries, or other publicly accessible premises. Works exhibited privately (e.g., at home in one’s living room) are not included.
Powers of the Author
Only the author can exercise the exhibition right or transfer the right of exhibition to third parties (e.g., museums, galleries). The transfer can take place by contract – this often concerns loan agreements, license agreements, or gifts and sales involving simultaneous granting or limitation of the exhibition right.
Duration of the Exhibition Right
Like other copyright entitlements, the exhibition right is subject to the expiry of the copyright protection term. In Germany, the exhibition right usually expires 70 years after the author’s death (§ 64 UrhG).
Exhibition Right in Acquisition and Resale
Principle of Exhaustion
The exhibition right is – unlike the distribution right (§ 17 UrhG) – not subject to the exhaustion principle. This means: Even after the sale or transfer of the physical original, the exhibition right remains with the author. The purchaser of a work of art does not automatically acquire the right to publicly exhibit it, unless the author expressly grants this right.
Statutory Limitations
Exceptions to the exhibition right may arise from the limitation provisions of the Copyright Act, e.g., in the course of reporting on current events (§ 50 UrhG) or due to citation freedom (§ 51 UrhG). In practice, however, these limitations are interpreted narrowly in relation to exhibitions.
Exhibition Right and Digitalization
Digitalization and New Channels of Exploitation
Digital exhibitions or the presentation of works on the internet (e.g., as part of an online catalogue) are not covered by the classical exhibition right, but require separate rights of use pursuant to § 19a UrhG (right of public accessibility). The exhibition right remains limited to the physical display of the original.
Relationship to Museums and Galleries
For museums, galleries, and collectors, the exhibition right is a central aspect in the acquisition and use of artworks. Frequently, an agreement on the exhibition right is required in connection with purchase, loan, or gift. Without the express granting of the right, museums may possess the work but may not publicly exhibit it.
Infringements and Sanctions
Unauthorized Exhibition
If a work is publicly exhibited without the consent of the author, this constitutes a violation of the exhibition right. In this case, the author can
- demand cessation,
- demand removal,
- claim damages,
- and, where applicable, demand the destruction of posters, exhibition catalogues, etc.
The legal basis for claims is § 97 UrhG.
Burden of Proof and Enforcement
In the event of disputes, the author or rights holder must demonstrate the existence of an infringement. Enforcement of cease-and-desist and damage claims is possible through civil litigation.
International Aspects
Exhibition Right in Other Jurisdictions
The exhibition right is regulated similarly in many other countries, especially those with Continental European legal systems. However, differences may exist in the scope of protection, duration of the right, and the question of the exhaustion principle. Under Anglo-American law, the exhibition right usually does not exist as a separate right; instead, exhibition is commonly understood as part of “public display” or “public performance.”
Significance of the Universal Copyright Convention
International copyright treaties such as the Berne Convention and the Universal Copyright Convention (UCC) require a minimum protection for exploitation rights; however, the design of the exhibition right is largely left to national law.
Conclusion and Practical Significance
The exhibition right occupies an important position within the copyright exploitation system, especially to protect the rights of artists and to control the use of their works in public spaces. For cultural institutions, art collectors, and galleries, it is essential to regulate the exhibition right by contract in order to avoid legal disputes. In light of ongoing digitalization, there remains a clear legal distinction between physical and digital modes of presentation.
See also:
- Copyright Law
- Right of Use
- Distribution Right
- Making Available to the Public
- Museum Legislation
Recommended Reading:
- Schricker/Loewenheim: Copyright. Commentary. 6th Edition
- Wandtke/Bullinger: Copyright. Commentary. 6th Edition
- Dreier/Schulze: Copyright Act. Commentary. 7th Edition
Frequently Asked Questions
Which rights must be observed when exhibiting artworks?
When exhibiting artworks, in particular copyrights and, where applicable, related rights must be taken into account. The primary exhibition right, according to § 18 UrhG, generally belongs to the author, i.e., the artist. For any initial public exhibition of a previously unpublished work, the express consent of the author is required. For already published works, the exhibition right may overlap with other rights of use, in which case the contractual arrangement between the author and the exhibiting museum, art association, or gallery is decisive. In addition, personal rights of the artist, such as the right to be named (§ 13 UrhG) or protection against distortion (§ 14 UrhG) of the work, must also be respected during and in the context of exhibitions. If artworks are borrowed or acquired from third parties, the respective rights of use and agreements must always be checked, since presenting a work without sufficient rights can result in cease-and-desist and damage claims.
May photographs of exhibited works of art be taken and published?
The taking of photographs of exhibited works is subject to both copyright law and the house rules of the exhibiting institution. If an exhibited work is protected by copyright, photographs of it may generally be taken and published only with the consent of the author or rights holder (§ 19a UrhG – right of public accessibility). If the work is in the public domain, for example because the protection period has expired, the house rules of the exhibition may still prohibit or restrict photography. For works situated in public spaces, the so-called freedom of panorama (§ 59 UrhG) may apply, which, however, does not cover works inside buildings (museums, galleries). Publishing photos (e.g., online) without the necessary permission may also give rise to copyright claims (injunction, warning, damages).
What liability risks exist for the organizer of an exhibition?
The organizer of an exhibition faces a range of legal risks. From a copyright perspective, the exhibitor is liable if artworks are presented publicly without the necessary rights. If the exhibition right or other copyright entitlements are infringed, there is a risk of cease-and-desist orders, claims for damages, and possibly even criminal charges (§§ 106 ff. UrhG). Further liability risks arise from loans: if exhibited works are damaged, lost, or stolen, the lenders may assert civil claims for damages. Moreover, the organizer has duties of care and safety obligations with respect to the placement and presentation of the works, so that personal injuries may lead to claims against the organizer. Appropriate (loan) agreements should therefore contain detailed provisions on liability, insurance, and security measures.
Is a separate license required for the public display of supporting materials for the exhibition (e.g., catalogues, audioguides)?
Yes, for supporting materials a separate copyright license is often necessary. The presentation or reproduction of illustrations of the artworks in the exhibition catalogue, on posters, in digital media, or audioguides constitutes an act of use, which is generally not covered automatically by the exhibition right. The different types of use (e.g., print, online, audio/video) must be clearly granted by the rights holders – these may be artists, estate administrators, collecting societies, or agencies. Contracts and legal provisions must be carefully checked to avoid violating image rights, related rights of speakers, or rights to work texts.
What copyright terms must be considered for exhibition rights?
Under German copyright law, a general term of protection of 70 years after the author’s death applies (§ 64 UrhG). Until the expiry of this term, both the work and derived rights, such as the exhibition right (§ 18 UrhG), are protected. Only after the term runs out does the work enter the public domain, allowing anyone to exhibit the work without seeking permission from the author or legal successor. However, exceptions or different terms may apply for photographic works, works with multiple authors, or certain related rights (e.g., photographers, exhibition photos). Furthermore, rights in supporting materials (catalogue texts, photographs of the works, etc.) each have their own terms of protection and right holders.
How do the exhibition right and the distribution right differ?
The exhibition right entitles the right holder to the initial public display of a previously not publicly shown physical original of a work of art (§ 18 UrhG). The distribution right (§ 17 UrhG), on the other hand, refers to passing on the physical work to the public, in particular by sale, rental, or lending. While the exhibition right allows a work to be made accessible to a number of viewers at the same time, the distribution right covers the transfer of the original or copies. Contracts must therefore clearly regulate whether and to what extent both rights are transferred or licensed. An exhibition without express grant of the distribution right is possible; conversely, granting the distribution right does not automatically entitle one to exhibit the work.
