On 31 May 2016, the Regional Court of Berlin (15 O 428/15) ruled that photographs of public domain paintings are, in principle, protected by a copyright-related right in section 72 of the German Copyright Act. The case involved a request to take down several pictures hosted on Wikimedia Commons as public domain images that had been taken by a photographer employed by the Reiss Engelhorn Museum in Mannheim, Germany. Responding to the judgment, the Wikimedia Foundation and Wikimedia Germany wrote that the decision did not pay adequate attention to the long-term damage this judgment represents to accessing public domain works.

The Wikimedia Foundation already announced its plans to appeal the case to the next level of appellate court—the Kammergericht Berlin—and, if necessary, to take it all the way to the Federal Court of Justice.

Facts of the Case

In October 2015, the Reiss Engelhorn Museum filed a lawsuit in the Regional Court of Berlin against the Wikimedia Foundation and Wikimedia Germany. The suit concerned copyright claims related to 17 photographs of works of art on display at the museum. The photographs were commissioned by the museum and were later uploaded to Wikimedia Commons—an online database of works distributed under creative commons licenses—by a third party. The paintings, portraits and other works of art at issue are all in the public domain. For example, a famous portrait of Richard Wagner was painted in 1862. Thus, its copyright term ran out long ago.

Key Legal Considerations

The Regional Court of Berlin found that the photographic reproductions in question do not qualify for copyright protection because the creative leeway of the photographer was restricted by his employer, the museum. The photographer's task was simply to reproduce the works of art as faithfully as possible. Thus, the photographic process did not allow for creative choices and individual arrangements and was merely guided by technical, not artistic, decisions.

However, 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 copyright-related right in section 72 of the German Copyright Act that would require no creativity on the photographer's part. But the scope of protection conferred by this related right is essentially equivalent to copyright, albeit with a shorter term.

While acknowledging that protection does not apply to mere scans or other photomechanical reproductions, the court found that the photographs in question are protected by that section 72 right. The photographs were the outcomes of difficult technical preconditions such as, inter alia, light, distance, angle and focus and, therefore, worthy of protection.

Originally published on July 8, 2016

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