Copyright inadmissibility of aerial photographs taken using a drone - LOSCHELDER successful for collecting society Bild-Kunst
BGH: Aerial photographs of copyrighted works taken with the aid of a drone are not subject to the so-called "freedom of panorama". (Judgment of 23.10.2024 - I ZR 67/23)
Bild-Kunst is a collecting society that administers the rights and claims of authors and ancillary copyright holders in the visual field. It brought an action against the operator of a book publisher that publishes guides to mining dumps in the Ruhr region. The guide contains aerial photographs of art installations located on the slag heaps taken by a drone. The creators of these installations have entered into copyright protection agreements with the collecting society Bild-Kunst.
The collecting society Bild-Kunst was of the opinion that the book publisher's publications infringed the existing copyrights to the installations because the aerial photographs were not covered by the “freedom of panorama” exception. It therefore claimed injunctive relief, damages and compensation for warning costs from the book publisher.
After the action had already been largely successful in the lower courts, the BGH now also ruled in favor of the collecting society Bild-Kunst:
Images of works of art taken with the aid of a drone that are part of the street scene or landscape visible to the general public may not be reproduced and distributed for commercial purposes without further ado. The freedom of panorama exception (§ 59 UrhG) applies only to perspectives available from publicly accessible roads, paths, or squares and does not extend to perspectives obtained from vantage points inaccessible to the general public. In these cases, the legitimate interest of the authors in receiving an appropriate share of the commercial exploitation of their works prevails.
The collecting society Bild-Kunst was successfully represented by Loschelder partner Dr. Patrick Pommerening (Intellectual Property, Copyright) in the proceedings before the Regional Court of Bochum and the Higher Regional Court of Hamm, and by attorney Dr. Thomas Winter before the Federal Supreme Court.
