In October 2015, the Reiss Engelhorn Museum in Mannheim, Germany, filed a lawsuit against the Wikimedia Foundation and Wikimedia Germany before the Regional Court of Berlin. The suit concerns copyright claims related to 17 photographs of works of art displayed at the museum which have been uploaded to Wikimedia Commons, an online database of works distributed under creative commons licenses.
The paintings, portraits, and other works of art which are at issue in this case are all part of the public domain. For example, a portrait of Richard Wagner whose photograph has been uploaded to Wikimedia Commons was painted in 1862. Thus, its copyright term ran out long ago. Yet, this fact in itself does not mean that photographic reproductions of such paintings are not copyrightable per se. In some cases, copyright may subsist in photographic reproductions of public domain art depending on whether they are the author's own intellectual creations (section 2 para. 2 of the German Copyright Act). Exact photographic reproductions of the work of art itself, however, lack creativity and, therefore, do not qualify for copyright.
According to a Wikimedia statement, the Reiss Engelhorn Museum claims that copyright applies to the photographs at issue in this case because the museum hired the photographer who took the photos and it took him time, skill, and effort to take the photos. Wikimedia, on the other hand, believes that the Museum's attempt to create new copyright in public domain works goes against European principles on the public domain. It states that "[c]opyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain, such as the paintings" that are housed in the Reiss Engelhorn Museum.
The question of whether copyright applies to photographic reproductions of public domain art cannot be answered in general because the protection of photographs is subject of varying regimes. In Germany, the protection granted to photographs is not just limited to copyright ("photographic works", section 2 para. 1 No. 5 of the German Copyright Act). Photographs can also obtain protection under a so-called neighboring right in section 72 of the German Copyright Act in which case no creativity on part of the photographer is required. As regards photographs of public domain works of art, protection under section 72 of the German Copyright Act is somewhat controversial. While it is widely undisputed that they, in principle, qualify as photographs eligible for protection, a recent decision by the Regional Court of Nürnberg (32 C 4607/15) seems to suggest that the provision's literal application should be "teleologically reduced" in cases where the boundaries of the public domain would be otherwise circumvented.
Lastly, the copyrightability of reproductions of two-dimensional images might also be judged differently than reproductions of sculptural works or other three-dimensional objects. In the latter case, the photographer is probably more likely to introduce creative choices about angles, lighting and background, which might, in some cases, even lead to copyright protection as a photographic work.
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