Hundertwasser decision

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The Hundertwasser decision is a decision of the German Federal Court of Justice (BGH) dated June 5, 2003 (file number: I ZR 192/00 ) on the scope of the so-called panorama freedom in copyright law . The name refers to the motif of the controversial photograph - the Hundertwasser-Krawina-Haus in Vienna. The judgment must be distinguished from a whole series of decisions by the Austrian Supreme Court , which also operate under the abbreviation Hundertwasserhaus and deal with various legal issues relating to the building complex.

facts

The subject of the legal dispute were art prints that were originally produced by a company in Austria and that the defendant Metro retailer offered for 199 DM in Germany. They showed the Hundertwasser-Krawina-Haus , a residential complex in Vienna designed by Friedensreich Hundertwasser . The print was based on a photo that had been taken without Hundertwasser's consent from a private apartment on the upper floor of a house opposite.

Hundertwasser - and after his death in 2000 the Hundertwasser Foundation as his heir - asserted (among other things) that the defendant was thereby violating his copyright. The prerequisites for freedom of panorama ( Section 59 of the Copyright Act [UrhG]) did not exist, which is why the photography of the residential complex could not be used without his consent. In addition, he has been selling a postcard himself for some time now that shows the house from a very similar perspective. The defendant's photos are therefore also impermissible copies. He sued the defendant for inadmissible duplication and distribution of the photo for omission and compensation .

Procedure up to the Federal Court of Justice

In 1999, the District Court of Munich I decided in the first instance in favor of Hundertwasser. The view from a private apartment is not a perspective privileged by the freedom of panorama, so that the defendant should not have been allowed to reproduce the building without the permission of Hundertwasser. The Munich Higher Regional Court overturned the regional court decision on the appeal directed against it . Because the Hundertwasser-Krawina-Haus with its facade is on a public street, the defendant could also invoke the freedom of panorama. It is irrelevant that the recording location was not a public place; The freedom of panorama allows such buildings to be shown from all perspectives, not just from the street. In addition, there was no unfree processing of the plaintiff's photograph, because the building "simply looks like" as it is reproduced in the photograph, so that processing is not possible. According to the Higher Regional Court, exploitation (reproduction and distribution) by the defendant was therefore permissible.

Decision of the Federal Court of Justice

In the appeal, the Federal Court of Justice first confirmed the assumption of the lower court in a judgment of June 5, 2003 that the plaintiff in Germany, as a citizen of a member state of the European Union, is entitled to copyright protection for his works ( Section 120 (2) No. 1 UrhG) and the Hundertwasser-Krawina-Haus enjoys plant protection as a work of architecture. (Whether protection exists and whether or which copyright restrictions are applicable, is determined in copyright law according to the so-called protected country principle - lex loci protectionis - according to the law of the country in which protection is sought. In the event of a dispute, this was Germany. That the house is located in Vienna, did not require the application of Austrian law.)

In contrast to the Higher Regional Court, however, the Federal Court of Justice did not see the conditions for freedom of panorama in the case of the disputed photography as not being met. In the opinion of the Federal Court of Justice, the freedom of panorama namely

"Only recordings and representations of the protected work are privileged that reflect the view from the public street or the public square [...] If a building is only visible to the general public from a certain perspective, according to the legal regulation there is no need to to exclude a representation or recording from the exclusive right of copyright that chooses a completely different perspective [...] "

Because there were other objections of the defendant in the room, which had to be clarified by the factual instance, the Federal Court of Justice could not finally decide the case, so it referred back to the court of appeal.

Progress

The Munich Higher Regional Court then dealt with the matter a second time. After it had been decided by the highest court that the freedom of panorama would not apply, it remained to be clarified which claims the plaintiff was entitled to. Because the prints were originally distributed in Austria, the defendant objected that the right of distribution had thus been exhausted - throughout the Community - and could therefore no longer be used in Germany either. Exhaustion occurs as soon as a work is placed on the market for the first time in the territory of the European Union with the consent of the person entitled, Section 17 (2) UrhG.

The Higher Regional Court first ruled that the subject recording fell under the freedom of panorama under Austrian law (§ 54 Z 5 ÖUrhG), so that permission from Hundertwasser was not required for the original distribution of the art prints in Austria. In this case, according to the Higher Regional Court, there is then no such thing as the consent of the person entitled to put it on the market, which is necessary for exhaustion. The right of distribution was therefore not exhausted. The court therefore granted a claim to cease selling the art prints. It allowed the appeal against the judgment of the Federal Court of Justice because of the fundamental importance of the case. The problem is that the distribution of the prints is now permitted in Austria, but not permitted in Germany, which is an impairment of the free movement of goods and a contradiction in terms of the European harmonization of copyright law. This may justify a different assessment.

No revision was made.

Web links

literature

  • Claudio G. Chirco: The freedom of panorama . Nomos, Baden-Baden 2013, ISBN 978-3-8329-7685-9 . [On the Hundertwasser decision in particular p. 115 f., 149 ff.]
  • Jan Fritz Geiger, Maximilian Herberger : The freedom of panorama from a methodological point of view - a comment on BGH, judgment of June 5, 2003, Az. I ZR 192/00 "Hundertwasser-Haus" . In: Internet journal for legal informatics and information law (JurPC) . No. 114/2005 , doi : 10.7328 / jurpcb / 20052010112 (freely accessible).
  • Astrid Müller-Katzenburg: Photographs and other reproductions of works in public - On the content and limits of the copyright "freedom of panorama" . In: Art Law and Copyright . tape 6 , no. 1 , 2004, p. 3-8 . [For the Hundertwasser decision in particular p. 5 f.]

Remarks

  1. ↑ References: NJW 2004, 594 = GRUR 2003, 1035 = ZUM 2003, 955 = AfP 2003, 543 = WRP 2003, 1460.
  2. ↑ OGH April 26, 1994, 4 Ob 51/94 = MR 1994, 200 = ÖBl 1994, 285 - Hundertwasserhaus I ; OGH November 19, 2002, 4 Ob 229 / 02h = MR 2003, 41 = ÖBl 2003, 142 - Hundertwasserhaus II ; OGH June 20, 2006, 4 Ob 41 / 06t = MR 2006, 204 = ÖBl 2006, 280 - Hundertwasserhaus IV ; OGH 11.03.2010, 4 Ob 195 / 09v = MR 2010, 201 - Hundertwasser-Krawina-Haus I / Hundertwasserhaus V ; OGH 02/12/2013, 4 Ob 190 / 12p = MR 2013, 81 = ÖBl 2013, 234 - Hundertwasser-Krawina-Haus II / Hundertwasserhaus VI .
  3. ^ LG Munich I, judgment of September 30, 1999, 7 O 8900/99 .
  4. ↑ OLG Munich, judgment of June 15, 2000, 6 U 5629/99 = ZUM 2001, 76.
  5. ↑ NJW 2004, 594, 595; in this respect confirmed in BGH, judgment of April 27, 2017, I ZR 247/15 - AIDA Kussmund , Rn. 35.
  6. ↑ OLG Munich, judgment of June 16, 2005, 6 U 5629/99 = GRUR 2005, 1038 = ZUM 2005, 755 - Hundertwasser-Haus II .