Germany: Architectural Art - The Combination Of Art And Architecture Involves Both Opportunities And Risks

Last Updated: 29 June 2012
Article by Dr. Stefanie Minzenmay

Art can increasingly also be found as a (structural) element of the usage of buildings. The publicity effect hereof can increase the attractiveness of the building and how the users identify themselves with "their" building. However, before building or acquiring such a property, the legal consequences need to be well thought through. This point was most recently illustrated inter alia by the discussions and legal disputes with the architect of Berlin's central station, Meinhard von Gerkan, or the negotiations between the heirs of the since deceased architect of the former wholesaler market Großmarkthalle in Frankfurt, which was to be integrated into the new construction of the European Central Bank.

Not all buildings are art

At least 1% of the construction sum for public buildings belonging to the German Federation is used for "architectural art". Several major cities have assumed this obligation at the municipal level, but private building owners are also executing corresponding art projects on their buildings. Works of architecture and works of applied art, as well as drafts of such works, are protected by copyright law. However, not all buildings are of copyright relevance. According to supreme court jurisprudence, the existence of a work of architecture presupposes a personal, creative activity which represents an independent, intellectual creation. Moreover, the work must exist in physical form and must display a degree of creative uniqueness, that is to say it must be something individual, unmistakable.

In addition thereto, an above-average level of originality is required. Whether or not it must also be aesthetic is appraised differently by the courts. If these criteria are fulfilled by the property as a whole, the "intellectual author" can plead copyright protection, generally the architect(s). Also to be taken into account is the fact that the copyright does not expire until seventy years after the death of the copyright holder and accordingly transfer to his heirs.

For an investor or project developer, a building which in its entirety constitutes a work of architecture is particularly interesting, since it is an eye-catcher that is visible from a long distance due to its special and unmistakable appearance. Structurally prominent properties or entire urban districts, such as the so-called "Überseequartier" of Hamburg's Hafencity, have become both the core and basis of promising marketing strategies.

Copyright protection risk

Existing copyright protection also entails risks for investors and property owners, however. For example, it is the architect alone who determines whether and in what way his work is published, as long as this does not simply concern a street scene which is covered by the freedom of panorama.

He is also entitled to replicate the building at another site. The originator of the work of architecture is also fundamentally entitled to have the building designed by him neither distorted nor impaired in any way that would be apt to endanger his legitimate intellectual or personal interests in the work.

The total destruction of the building by demolition, in contrast, is not protected by copyright law, unless it is a listed building or part of an ensemble. Whether and to what extent rights of use are expressly or tacitly transferred to the building owner or new owner must be contractually stipulated or examined as precisely as possible.

This is also the case if a specific work of art is to be added to a building or integrated into the building. Forms of art leasing are also used on various occasions, which can be advantageous for the owner if he intends to display a variance of artworks, for example. This is because, in the event of a copyright infringement, the owner cannot only be sued for the removal of the impairment and, in case of repetition, for forbearance; in case of wilful intent or negligence of the damaging party, the originator of the work of art can also demand damages.

Requirements of the German Building Code must also be carefully examined. Frequently, a separate examination of the structural circumstances and fire protection requirements is necessary. 

Use of tax benefits

Under the tax aspect, buildings can still be of interest to project developers even if they are listed properties. Properties are included in the list of protected buildings if they are buildings of historic importance whose maintenance and use are in the public interests, for example if artistic, scientific, folkloristic or urbanistic reasons herefor exist. German income tax law provides considerable depreciations for such buildings.

Both the state and the purchasers of such properties profit from the tax depreciation for listed buildings. The state can – irrespective of specially set up aid programmes – protect, renovate and maintain listed buildings without incurring any expenses of its own. The purchaser generally acquires a property which has a high degree of architectural and artistic quality.

Here, however, an owner can be caught off guard with his plans if the property is first considered for listing as a historic building during the course of the development or renovation project, for example because the historical buildings authority has recognised that a public interest exists in preserving the building's original condition. In this case, the owner faces time-consuming coordination procedures with the historical buildings authority. The renovation then often turns out to be far more expensive, since special conditions applying to historical buildings will then have to be observed.

The existence of a historical monument can also stand in the way of necessary urban development measures. For example, in the North-Rhine Westphalian capital Düsseldorf, discussions have been conducted since as far back as 2001 about demolishing a road overpass (the so-called "Tausendfüßler") in order to create a larger and newly designed area for the "Kö-Bogen" project. The demolition of a historical monument, however, is a measure subject to an approval requirement and which demands the existence of a prevailing public interest in favour of this measure. In such case, questions of the ability to permanently maintain listed buildings in their historical condition also frequently arise.

The symbiosis of buildings and art offers manifold chances through the creation of architecture which has particular significance and recognition value, as long as the legal framework conditions herefor are observed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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