Image rights

from Wikipedia, the free encyclopedia

Image rights are the copyrights to which the photographer is entitled to his photo or photographic work . In addition, this includes the personal rights of a person who is photographed, house rights when taking photos on property belonging to others , and industrial property rights to a photographed object, which, under certain conditions, require a photography permit.

Copyright protection

International agreements

The most important international basis in the field of copyright is the Revised Bern Convention (RBÜ) , originally the Bern Convention for the Protection of Works of Literature and Art of September 9, 1886.

It generally requires at least 50 years of protection for works after the death of the author, and at least 25 years for photographic works (Art. 7 Para. 4 RBÜ) as a minimum standard for national legislation.

In addition, there is the World Copyright Convention of September 6, 1952, revised on July 24, 1971 in Paris . The works of the nationals of the other contracting states are thereby protected like the works of their own nationals published on their own territory.

Germany

In Germany today, these rights are laid down in the Copyright Act. The exploitation rights under the Copyright Act include reproduction rights, distribution rights and publication rights, personal rights include the right to recognize the authorship (e.g. naming the name) and the prohibition of distortion.

The right to one's own image is regulated in Germany in the Art Copyright Act.

Austria

Copyright is established by the Federal Act on Copyright in Works of Literature and Art and Related Rights .

Sweden

Switzerland

Copyright is regulated in the federal law on copyright and related rights .

United States

Regarding copyright in the USA in general: copyright extends for a period of 70 years after the death of the author - since the amendment of Section 302 of the US Copyright Act by the Sonny Bono Copyright Term Extension Act of 1998. In addition, the date of Publication or registration of rights to be taken into account when calculating the term of protection.

According to Title 17 of the United States Code , stamps are first issued

  • before December 31, 1977 in the public domain,
  • Copyrighted January 1, 1978 by the United States Postal Service . Written approval is required here.

To the decision Bridgeman Art Library vs. Corel Corporation for faithful painting photographs, see notes in the section Two-Dimensional Originals .

China

Works by Chinese citizens, companies, organizations, etc., as well as works by foreigners that were first published in the People's Republic of China are subject to the Copyright Act of the People's Republic of China, passed by the Standing Committee of the National People's Congress on September 7, 1990 in the version dated September 27, 1990 October 2001.

Otherwise, the general or specific international treaties that China has signed apply. China joined the World Copyright Agreement and the Berne Accord in 1992.

Image rights in Germany

history

The history of photography begins in 1826 with the first photo by Niépce and the improvements made by Daguerre in 1835. Over the years, photographs have been expressly mentioned in laws and the relevant provisions on protection and protection periods have been repeatedly extended.

1865

The Kingdom of Bavaria granted photography rights in the law for the protection of copyrights in literary products and works of art of 1865, based on the Frankfurt draft of a German copyright law that was not implemented in other countries .

1876

According to the law on the protection of copyright in works of photography of January 10, 1876, the protection period for photos was five years.

1907

The law on copyright in works of the fine arts and photography (KUG) of January 9, 1907 provided for a term of protection of ten years from their publication or from their production. Furthermore, a 25-year protection period applied after the death of the author if the work had not yet appeared by the time of his death.

1940

The period for copyright after publication was extended to 25 years by the law extending the protection periods for copyright in photographs of May 12, 1940.

1965

In the Copyright Act of September 9, 1965 (in force from January 1, 1966), a distinction was made between photographs (Section 72) and photographic works (Section 68), which are of their own intellectual creation. The term of protection was 25 years in each case. The KUG was replaced.

1985

With the amendment to the law of June 24, 1985, simple photographs were protected for 25 years, while photographs as documents of contemporary history were protected for 50 years. Photographic works were now protected for up to 70 years after the author's death. According to § 137a Abs. 1 UrhG, the protection period could be extended accordingly if it had not expired by the time it came into force.

1995 - adaptations to EU law

The distinction between simple and historical photographs was abolished in the amendment to the Copyright Act of June 23, 1995 as of July 1, 1995; the term of protection for photographs has been 50 years after their creation (if the photograph was not published within this time) or 50 years after Publication within this period according to § 72 Abs. 3 UrhG.

According to Art. 6 of the Term of Protection Directive 93/98 / EEC of July 1, 1995, many photographs became photographic works in EU law if they express an individual approach or artistic statement by the photographer. Photographic works have been protected since 1985 for up to 70 years after the author's death.

The EU's Term of Protection Directive makes it sufficient that protection still exists if protection in one of the member states had not expired on July 1, 1995.

The transitional provision in the Copyright Act derived therefrom reads (§ 137f UrhG): “The provisions of this law in the version applicable from July 1, 1995 are also applicable to works whose protection according to this law expired before July 1, 1995, after Law of another member state of the European Union or of a signatory state to the Agreement on the European Economic Area but still exists at this point in time. "

Against this background, lawyers point out that in Spain , a period of protection of 80 years pma applied to works created up to 1987 if they were registered in a copyright register (Art. 6 Para. 1 LPI of January 10, 1879 and Royal Decree of September 3, 1880).

After a decision by the Hanseatic Higher Regional Court in Hamburg , the rights to a photo from 1941, which was classified as a photographic work and showing an emerging submarine , were revived, as the photo , which was first published in Italy in 1943, was still protected on July 1, 1995, at least in Spain was. In this case, the photo was still protected in Italy at the time Spain was admitted to the EU in 1986.

As a rule, this means that the photographic work of a European author is no longer protected if the property right in the country in which it was first placed on the market expired in 1986 or the author has been dead for at least 70 years. A public domain that already existed is no longer valid, so that claims for remuneration can also arise subsequently. However, there is great legal uncertainty as the number of judgments in this area is very small.

Development in the GDR

In the GDR , the law on copyright of September 13, 1965 replaced the provisions in the old Reich laws on the rights and obligations of the author.

The special provisions of the Unification Treaty (Section II 2 in Subject Area E) provided for works created and services provided before October 3, 1990: “The provisions of the Copyright Act are to be applied to works created before accession took effect. This also applies if the deadlines according to the law on copyright of the German Democratic Republic had already expired at this point in time. "

Photographs taken in the GDR and in the Federal Republic are therefore treated almost equally.

Photographs as documents of contemporary history

One of the adjustments to EU law was that the concept of contemporary historical photographs was abolished on July 1, 1995.

The Hanseatic Higher Regional Court in Hamburg made a distinction between photographic works and contemporary historical photographs in 1999 for family photos from the years 1930 to 1942 to calculate the protection periods (Wagner family photos) .

This decision is of practical importance because all older pictures from the time before 1966 that are still in demand for publication today can be considered documents of contemporary history. All such photographs were, insofar as they were first published after the death of the author and the author died after December 31, 1940, uniformly protected until December 31, 2015. This has the paradoxical consequence that from 2012 to 2015 documentary photographs were still protected, while the standard protection period for photographic works has already expired 70 years after death.

Definition and terms of protection

From a technical point of view, photos are created when light, infrared, x-ray or other rays change radiation-sensitive substances and these changes are recorded physically, chemically or in some other way.

German copyright law distinguishes between protected (simple) photographs and (sophisticated) photographs on the one hand, and non-protected images on the other. Other countries, such as Austria , also make a comparable distinction . The demarcation always depends on the circumstances of the individual case, is often difficult and therefore occasionally the subject of legal disputes.

Photographic works

Photographic works , including "works similar to photographic works are created" and film works, including "works that are similarly created as film works" are personal intellectual creations, that go beyond the ordinary and are characterized by individuality and a minimum level of originality have . They are legally protected, § 2 Abs. 1 UrhG . The copyright of photographic works expires according to § 64 UrhG 70 years after the death of the author ( lat. Post mortem auctoris , pma), the standard protection period in the EU. According to § 69 UrhG, the deadlines begin at the end of the calendar year in which the event decisive for the beginning of the deadline occurred.

Photographs

Photographs according to German law are “photographs and products that are produced in a similar way to photographs”, which do not have any work quality , but represent a personal achievement. They are protected in accordance with the regulations applicable to photographic works, Section 72 (1) UrhG.

The copyright to (simple) photographs expires 50 years after the first appearance of the image (or after the first permitted public reproduction, e.g. on television or the Internet, if this date is earlier) according to Section 72 (3) UrhG. If it is not published within 50 years of production, the term of protection expires . In rare cases, this can result in a protection period of almost one hundred years. Example: A photograph from the year 2000 is published for the first time just before the fifty-year period in 2050 and is then protected until the end of 2100.

Images not protected by copyright

Images or films that do not meet the definitions of Section 2 Paragraph 1 or Section 72 Paragraph 1 UrhG are not protected by copyright according to Section 2 Paragraph 2 UrhG. They are in the public domain , so they belong to the "free common property". This includes in particular, regardless of the technology used (e.g. photocopier, scanner, repro camera) reproductions of a two-dimensional image or text template (see below two-dimensional templates ), provided that they were created with the aim of achieving the greatest possible match with the original. The photography of a painting, however, enjoys photo protection according to § 72 Abs. 1 UrhG. Because when creating them, the photographer has to make decisions about a number of design circumstances, including location, distance, viewing angle, exposure and section of the picture. For this reason, such photographs regularly - also in the event of a dispute - achieve the minimum level of personal intellectual performance required for protection under Section 72 (1) UrhG.

FEDERAL COURT I ZR 104/17:

"The protection of §72 UrhG relates to photographs and products that are produced in a similar way to photographs. According to this, any process in which a picture is generated using radiant energy can be considered. The technical reproduction process alone does not justify photo protection Rather, a minimum of - not creative, but nevertheless - personal intellectual achievement is required, which is regularly achieved even with simple photographs, but is absent in the case of photographs that are merely reproductions of other photographs, i.e. those that are an original -The light image is merely reproduced (copied) as faithfully as possible. Photo protection requires that the photo as such was originally created, i.e. as a prototype. The inclusion of a photograph of a (also two-dimensional) work requires - as does the revision does not deny - decisions of the photographer rafen on a number of design circumstances, including location, distance, angle of view, exposure and section of the picture (Vogel in Schricker / LoewenheimaaO§72 Rn.30; Schulze in Dreier / SchulzeaaO §72 marginal number 10; Schack, Art and Law: Fine Arts, Architecture, Design and Photography in German and International Law, 3rd ed. 242526-11 marginal number 873; Bullinger, Festschrift Raue, 2006, pp.379, 382; Erdmann, Festschrift Bornkamm, 2014, pp. 761, 766; Katzenberger, GRUR Int. 1989, 116, 117). Even if - as the revision emphasizes - the photographer bases these decisions on technical issues and pursues the goal of an image that is as true to the original as possible, this does not speak against the existence of a personal intellectual achievement. Craftsmanship without an artistic statement can also fall within the scope of protection of §72 UrhG (cf. Schack, Festschrift Pfennig, 2012, pp.207, 208). According to the legislature, the subject of photo protection is precisely the “purely technical performance” of the photographer, “which does not even require special skills” (see government draft of a law on copyright and related rights, BT-Drucks. IV / 270, p. 88; Talke, ZUM 2010, 846, 849; also BGH, judgment of November 4, 1966 -IbZR 77/65, GRUR 1967, 315, 316 [juris marginal number 25] = WRP 1967, 212 -scai-cubana). Thus, the production of a photograph of a painting regularly - also in the event of a dispute - reaches the minimum level of personal intellectual achievement required for protection according to §72 UrhG. "

Protection of reproductions

In the case of reproductions of copyrighted templates (originals), the consent of the author must be obtained (except in the event that a legal limit applies). The prevailing case law assumes that the reproduction of an original in the public domain that is shown in a work (book) that is not in the public domain can be reproduced as often as required without the consent of the photographer and the publisher. When reproducing public domain templates, a distinction is made according to whether it is a two- or a three-dimensional object:

Two-dimensional templates

One argument against the independent protectability of true-to-original image reproductions is that this would allow the term of protection of a photograph to be extended at will if at the same time the original is withheld from the general public.

It is generally accepted that mechanical copying (e.g. xerography, photocopy ), digitization (e.g. scanning with a flatbed scanner ), as well as reproduction (e.g. with a reproduction camera) of typographic templates in the public domain (books , Certificates, etc.) and photographs of original photographs (picture from picture) do not give rise to the photographer's own ancillary copyright ( § 2 , § 72 UrhG). Such images, which are as true to the original as possible, are also referred to as "technical reproduction".

So who considered federal court in 1989 in the decision Bible Reproduction not faithful reproductions of images as protectable. This involved photos of engravings by Matthäus Merian (1593–1650).

Accordingly, the Düsseldorf Higher Regional Court ruled in 1996 that reproductions on an electronic medium and in its accompanying booklet, which had been made from reproductions of drawings by the artist Joseph Beuys in an exhibition catalog , were in the public domain : solely because a photographer recognized as an artist takes photographs "It cannot be deduced that all of his photographs are works of art [...] When taking the drawings, the aim was to reproduce the two-dimensional works of art as correctly as possible. There was not a significant amount of artistic freedom. How to optimally illuminate a drawing for recording and which film material and photo paper to use, how to expose and develop, affects the technical side of the photographer's activity. The correct shooting position is already given for the flat objects. ”A photograph that offers nothing more than a technically flawless reproduction of the depicted object is not a work of art even if the depicted object is itself a work of art of high standing.

Similarly, the Federal Court of Justice confirmed in the phone card decision in 2000 : “Regardless of this, the image for which the plaintiff claims the protection of § 72 UrhG should be more than a mere technical reproduction of an existing graphic. Because the technical reproduction process alone does not justify photo protection (see BGH, judgment of 8 November 1989 - I ZR 14/88, GRUR 1990, 669, 673 - Biblical reproduction, with further references; Schricker / Vogel, Copyright, 2nd edition, § 72 UrhG marginal note 22). Rather, a minimum of personal intellectual performance is required, which is then to be denied if a photograph or a similarly manufactured product is nothing more than the mere technical reproduction of an existing representation. "

The copyright comment published by Gerhard Schricker repeats that protection of reproductive photography should be rejected. What is new, however, is the note that clichés made from an image or text template are not protected for printing either. The older jurisprudence on facsimile prints (1st civil senate of the Reichsgericht , judgment of November 5, 1930 on the Codex Aureus ) is expressly rejected.

In the USA in 1999 a court ruled in the Bridgeman Art Library vs. Corel Corporation faithful painting photographs not copyrightable because they lack originality (United States District Court for the Southern District of New York, February 18, 1999). The software manufacturer Corel had used slides from the Bridgeman Art Library for the picture collection on its own CD-ROM .

In Great Britain, publishers are trying to invoke the protection of reproductions in common law on the basis of the sweat of the brow principle .

See also the notes in the section on image rights in museums, archives and libraries .

Three-dimensional templates

In the case of photography of three-dimensional originals, "the impression that the depicted works of art create [...] essentially depend on the point of view from which and the lighting in which they were taken". The photographer can bring in his creativity here. This applies, for example, to photos of spatial art objects (even if their third dimension is only created by reliefs) and of the exhibition space. According to German law, the reproduction of three-dimensional originals, even if they are in the public domain, always represents a photograph or photographic work and is therefore protected by copyright in accordance with Section 2 (1) or Section 72 (1) of the Copyright Act.

Databases

If there are digitized public domain templates in a database ( § 87a UrhG), which is likely to be the case for larger digitization projects and extensive websites, extraction is only possible in accordance with § 87b UrhG. Repeated and systematic withdrawals could violate the legitimate interests of the database manufacturer ("investment protection"). The 15-year protection is extended whenever a substantial investment is made.

particularities

Illustration of monuments and modern architecture

Works such as buildings and monuments that are permanently located on public roads, streets or squares may be photographed safely according to § 59 UrhG.

For the freedom of panorama it is essential that the photographs were taken from a location generally accessible to the public, as confirmed in the Hundertwasser decision in 2003 .

However, caution is advised when interpreting the phrase “generally accessible place”: For example, the Prussian Palaces and Gardens Foundation Berlin-Brandenburg has tried since 2008 to use photographers to take pictures of the buildings they own (i.e. almost all of the palaces in Berlin and Brandenburg) To forbid interim measures, whereby it was argued here that, for example, pictures of Sanssouci Palace may only be used if they are not taken from the park itself, as this is the property of the Foundation and is therefore no longer “generally accessible” (the same applies for the castles Charlottenburg, Rheinsberg etc.). This contrasts with the undisputed public dedication of the palaces and parks, after all, the foundation does not manage private property in the traditional sense. Nonetheless, in its judgment of December 17, 2010, the BGH decided to grant the foundation the right to charge a fee for commercial recordings of the objects it manages (see also the right to a picture of one's own thing ).

According to the specialist literature, permanently affixed maps or text panels in the street scene also fall under the freedom of panorama or street scene.

The freedom of panorama also applies to snowmen because they are by nature ephemeral . Borderline cases, however, are z. B. Sand and ice sculptures . The Reichstag, which was veiled by Christo and Jeanne-Claude in 1995 , is protected by copyright because it was neither permanent nor inherently perishable. Exceptions are photos for purely private purposes and for reporting on current events.

In France and many other countries there is no freedom of panorama.

privacy

According to German law, it is also not permitted to peer over walls or to overcome other obstacles or to use aids such as telephoto lenses , ladders or even aircraft to penetrate the protected privacy of a (prominent) person.

Even detailed aerial photos (see Google Earth, for example ) can impair privacy: “For example, an aerial view of the garden which, due to its resolution, reveals objects and objects in the garden as well as its design and thus the personal living conditions, endangers the property as a property personal retreat. The more burdensome effect is, the more data the aerial photo contains, which is suitable to undo the anonymity of the property and thus the privacy. "

Right to the picture of one's own cause

A right to a picture of one's own thing exists in German-speaking countries only under certain circumstances. The mere possession or ownership of an item does not constitute a right to prohibit third parties from displaying the item in two dimensions through photography, painting, etc. in any case. The legitimate endeavor of photographers to take pictures of “interesting” objects that are not protected by copyright does not, however, nullify the right to exercise the domiciliary rights of the owner of a property or building. This person may prohibit entry into his property that is necessary for the purpose of recording.

Image rights in museums, archives and libraries

Museums , archives , libraries and other owners of cultural assets (e.g. works of art) usually make marketing claims for images and reproductions of their property even when the protection under copyright law has expired. When it comes to the ban on photography, museums, exhibitors, operators of caves with wall drawings and others rely on their house rules .

For the use of a reproduction, the owners charge a so-called reproduction fee, which, however, usually does not represent a mere compensation, but is graded according to the model of copyright payments.

A possible justification could be in Article 14 of the Basic Law (GG), from which rights of disposal arise. In the case of public collections, however, the ownership of the property is overlaid by the purpose of the collection within the framework of public law. If there are special legal bases (in the case of archives, these are the archive laws ) or if the collection is subject to a public-law regime, there are clear limits to marketing.

The opponents of this marketing, for example the historian Klaus Graf , point out that such a practice leads to a kind of perpetual property right that is not wanted by the federal legislature, which is responsible for intellectual property, and at the same time also that according to Art. 5 Para. 1 GG contradicts protected freedom of communication . Cultural property is common cultural property that should be freely usable.

The Reiss-Engelhorn Museums in Mannheim have turned to courts against the use of a 20-year-old photograph of Caesar Willich's public domain painting on Wikipedia and Wikimedia Commons . The museums failed in the proceedings before the Nuremberg Local Court against a subsequent user.

The Berlin Regional Court of First Instance has upheld the lawsuit against the Wikimedia Foundation . The subject of the legal dispute was probably only the questions of the copyright protection of the photo, but not the question of whether and under what circumstances the museums, as the owner of the original photo, can prohibit publication. The Wikimedia Foundation will appeal the judgment to the Higher Regional Court.

Image rights to things in private space

Photographs whose subject matter is in the public domain do not constitute a violation of copyrights, but possibly other rights, for example because of a violation of house rules or a legally effective ban on photography.

Decisions on this subject area, in particular § 903 BGB (powers of the owner) and § 1004 BGB (removal and injunctive relief), are among others

  • Schloss Tegel (BGH, judgment of September 20, 1974, Az. I ZR 99/73)
  • Friesenhaus (BGH, judgment of March 9, 1989, Az. I ZR 54/87)
  • Wayangfiguren (OLG Cologne, judgment of 25 February 2003, Az. 15 U 138/02)
  • Prussian Palaces and Gardens , (BGH, judgment of December 17, 2010, Az. V ZR 45/10)

Prohibitions based solely on domiciliary rights, as well as contractual agreements between the owner and the visitor to a property, have no real effect, i. H. no effect on anyone. The house rules fail if third parties who have not violated the house rules themselves use the recordings.

For this reason, in the above BGH judgments “Schloss Tegel” and “Prussian Palaces and Gardens” argued not with a violation of house rules, but with an impairment of property rights.

Use of anonymous works

In the case of anonymous works, the copyright expires 70 years after publication or - in the case of non-publication - after creation ( Section 66 UrhG). However, caution should be exercised against careless use of older photographs, the print of which does not name a photographer: On the one hand, the rule on anonymous works does not apply if the author has revealed his identity within 70 years after the photograph was taken. On the other hand, the earlier law, which existed until 1995, contained further regulations that still have to be observed for photographs taken before July 1, 1995. The old version did not apply to unpublished works, nor to works that were only published posthumously (after the death of the author): Although the author was not known, a legal successor could counter with reference to the authorship and the date of death of the author an initial publication carried out by a third party 70 years after production. On the other hand, Section 66 (4) UrhG (old version) does not apply to the works of the fine arts, as stated in the exception of the works of art.

More information under Anonymous work (copyright) .

The picture quotation according to § 51 UrhG

As with text citations , there is also the option of using a picture protected by copyright as a picture quotation according to § 51 UrhG, "provided that the scope of use is justified by the particular purpose". The prerequisites include, among other things, that the image is not changed and that the source is correct .

The picture quotation is usually viewed as a “large quotation”, since the entire picture is reproduced. The film quote, on the other hand, is usually regarded as a "small quote " because only a section of the film is reproduced.

Granting of image rights by the author

If freelance press photographers submit their work to be printed in print, this granting of rights does not generally include the right to use the photos on the Internet homepage, in an Internet archive or on CD.

Protection of first editions of photos - Editio princeps

Subsequent works that have remained unpublished are protected for 25 years after the protection period has expired or if they were never protected in accordance with Section 71 UrhG.

Use of official works

Unlike in the USA, photographs of employees of the German federal administration are not in the public domain. The regulations on official works hardly apply at all to pictorial representations.

Aerial photography and military installations

In Germany, a permit was required for aerial photography until 1990 . According to Art. 37 of the 3rd Legal Cleansing Act, this authorization requirement for aerial photographs is no longer applicable. However, section 109g (1) of the Criminal Code may result in prohibitions on photography for military installations or processes if this endangers the security of the Federal Republic of Germany or the effectiveness of the troops. Of § 5 para. 2 scope law shows that a designated protection area must not be photographed without permission.

Aerial photos and satellite photos taken with automatic cameras are to be regarded as photographs, but not as photographic works.

However, the Austrian Federal Ministry of the Interior has declared that aerial photos from the web do not pose a threat to the armed forces.

Right to your own picture

The right to one's own picture is a personal right . In principle, every person can decide for themselves whether and in what context pictures of them are published.

However, restrictions apply to "persons of contemporary history" such as politicians, athletes and artists. Paparazzi recordings, on the other hand, do not always have to be tolerated by celebrities ( ECHR, complaint no. 59320/00, June 24, 2004, Caroline von Monaco ).

X-rays

X-rays are at least simple photographs according to § 72 UrhG. Who makes the recording, so usually the radiographer or radiologist , is the light generator. This allows them to claim the rights for themselves and publish the X-ray images they have created under a license they have chosen.

In doing so, he must in principle take into account the right to the patient's own image . Because of this, however, only when visibility is given to the patient, it often plays a role. In special individual cases (e.g. a certain, also externally recognizable mutilation or a recognizable body jewelry depicted with a picture such as a special piercing ), the patient's permission for publication must be obtained even if the recognizability is only given in principle, without this having actually happened.

If a patient wants to publish an X-ray that was made of himself (a part of his body), this generally requires the consent of the radiologist or radiologist who made it, as this is the author. In Germany, regardless of the X-ray Ordinance, every radiologist is obliged to give a patient a copy of his X-ray images (including the findings and other data) upon request, but this does not change the copyright situation. The transfer to a doctor or dentist who will carry out further treatment should not be viewed differently with regard to this question. Thus, a doctor who wants to publish so-called external images, i.e. images brought by the patient from another radiologist, must obtain the consent of this radiologist.

What has been said above applies accordingly to similar examination results, in particular by computer tomography , magnetic resonance tomography , scintigraphy , positron emission tomography and ultrasound .

Mug Shots

In Germany, according to Section 24 of the KUG (exceptions in the public interest), portraits may be “reproduced, distributed and publicly displayed” by the authorities for purposes of the administration of justice and public safety without the consent of the person entitled, the person depicted or their relatives. This concerns the right to the alleged perpetrator's own image . The copyrights of the photographer are restricted by § 45 Abs. 2 UrhG.

Such image publications in press organs (or on television , see file number XY ... unsolved ) are only permitted in the context of search calls. The right to the alleged perpetrator's own image must resign if he can be assessed as a person of contemporary history ( Section 24 (1) No. 1 KUG). In any case, it should be noted that after a conviction and serving of a sentence, further photo reporting could stand in the way of rehabilitation (see Press Code ) and may therefore have to be omitted (see also Lebach judgment ). In its ruling in 2007, the Berlin Regional Court prohibited the use of Eva Haule's image on the facsimile of a BKA wanted poster from 1985 "in connection with reports about their detention and their impending release".

It is important: only official search calls can use photographs without the consent of the photographer. If mug images are used in journalistic reporting or on the Internet, then - apart from the possibility of quoting the image - the rights must be acquired normally, since § 45 UrhG is ruled out as a legal basis.

In view of the provision of § 45 UrhG, which already guarantees unrestricted use for search purposes, it cannot be assumed that mug shots are official works within the meaning of § 5 UrhG. Wanted posters are not allowed to be official announcements according to § 5 Abs. 1 UrhG, because they lack regulative content. An argument against the application of paragraph 2 is that there is no general interest in knowledge irrespective of search purposes.

Photographs in prison

According to Sections 86 , 86a of the Prison Act , prisoners may be photographed with their knowledge during the sentence , irrespective of the regulations regarding the right to one's own picture ( Sections 22 ff. KUG). Recordings that are not used for identification purposes are to be destroyed after release.

Banknotes

The publication of banknotes, for example by showing them on the Internet, must not lead to the assumption of confusion that they are dealing with commercially available, “real” money or that other reproduction options are available, otherwise they are unlawful . However, the publication of euro banknotes is lawful if no more than a third of the note can be seen on the recording or the quality of the reproduction excludes the possibility of confusion with real banknotes, but is still subject to a general copyright reservation by the European Central Bank ( § 128 para. 1 no. 1 of the Law on Administrative Offenses ).

Postage stamps

In Germany, official postage stamps were published in the official gazette of the Federal Post Minister (dissolved on January 1, 1998, since then issued by the Federal Ministry of Finance , Postage Stamps Department). The Regional Court of Munich I confirmed these works in 1987, even if they were designed by a private person, as official works and in the public domain. The announcement by the Ministry of Finance no longer takes place in an official gazette, but only on its website. In 2012, the Berlin Regional Court ruled the opposite based on the prevailing opinion in the literature (see postage stamp ).

Protection of protected animals

Several legal provisions (including Section 44 (1) No. 2 BNatSchG ) stipulate that particularly protected animal species may not be bothered by photography. If in doubt, you have to forego recordings if the animals are disturbed by it.

Recordings obtained illegally

When distributing recordings that were made during undercover research , a weighing of interests must be made. As a rule, the violator of domiciliary rights or contractual obligations can be called upon to cease and desist, but there are also cases in which the public interest in the disclosure of grievances prevails and freedom of expression comes into play. The Hamm Higher Regional Court sought a differentiated assessment in the case of covert recordings in a laboratory that carried out animal experiments .

Image rights with the help of trademark law

There are also attempts to secure the image rights to works in the public domain under trademark law . The Federal Patent Court has the attempt in 1997 Mona Lisa as a trade mark to be registered, prohibited (Federal Patent Court of 25 November 1997, Mona Lisa as a trademark ).

Protection as a design patent

According to the Design Act , the owner of the right can also control the commercial representation of the protected design .

The German Bahn AG has the ICE can -Zug registered as designs and charges a fee for commercial pictures since 2,001th

See also

Individual evidence

  1. ^ Image rights Lexicon of Film Terms, July 28, 2011.
  2. ↑ BGBl . 1973 II p. 1071, 1985 II p. 81.
  3. ↑ BGBl. 1955 II p. 101 .
  4. ↑ BGBl. 1973 II p. 1111 .
  5. ↑ USPS website. (No longer available online.) Archived from the original on August 17, 2003 ; accessed on July 9, 2012 (English).
  6. ↑ RGBl I p. 758
  7. ↑ BGBl. 1985 I p. 1137
  8. ↑ Directive 93/98 / EEC (PDF)
  9. ↑ OLG Hamburg, judgment of March 3, 2004 , Az. 5 U 159/03, U-Boot-Foto 1941 .
  10. ^ Text of Annex I, Chapter III, Section E of the Unification Treaty
  11. ↑ OLG Hamburg, judgment of November 5, 1998 , Az. 3 U 175/98, Wagner family photos .
  12. ↑ Hamburg Higher Regional Court - Wagner family photos on wikisource
  13. ↑ BGH, judgment of 8 November 1989 , Az. I ZR 14/88, Bible reproduction .
  14. ↑ a b OLG Düsseldorf, judgment of February 13, 1996, Az. 20 U 115/95, Beuys photographs , GRUR 97, 49.
  15. ^ BGH, judgment of December 7, 2000 , Az. I ZR 146/98, telephone card .
  16. ↑ Martin Vogel, Rn. 23 on § 72.
  17. ^ Reichsgericht, judgment of November 5, 1930 , Az. I 150/30, Codex aureus , RGZ 130, 196.
  18. ^ Bridgeman Art Library v. Corel Corp. , 36 F. Supp. 2d 191 (SDNY 1999).
  19. ↑ Genesis 3:19 .
  20. ↑ Walter v. Lane [1900].
  21. ↑ BGH, judgment of June 5, 2003 , Az. I ZR 192/00, full text - ( Hundertwasser decision ).
  22. ↑ a b BGH, judgment of December 17, 2010 , Az. V ZR 45/10, full text - Prussian castles and gardens .
  23. ^ BGH, judgment of January 24, 2002 , Az. I ZR 102/99, full text - Wrapped Reichstag and press release 7/02 of January 24, 2002.
  24. ↑ BGH, judgment of December 9, 2003 , Az. VI ZR 373/02, full text - aerial photographs of the holiday home , press release No. 152/03 of December 9, 2003.
  25. ^ Yvonne Dorf 2006: Aerial photographs and inviolability of the apartment . NJW 2006, 951 ff.
  26. ↑ Klaus Graf : Cultural assets must be free! In: Art Chronicle. Volume 65. Nuremberg 2007, ISSN  0023-5474 , pp. 507-510.
  27. ^ AG Nuremberg, Az. 32 C 4607/15.
  28. ↑ Reiss-Engelhorn-Museum fails with lawsuit against Wikipedia photo . Website. the law firm Hoesmann.
  29. ^ Annette Lennartz: Reiss-Engelhorn-Museen against Wikipedia . In: Culture Regional . SWR 2, July 9, 2015, accessed on July 2, 2016.
  30. ↑ Press release of the Reiss-Engelhorn-Museums , June 22, 2016 (PDF).
  31. ^ John Weitzmann: Explanation on the case of Reiss-Engelhorn-Museen . Wikimedia blog, Wikimedia Foundation and Wikimedia Germany, June 21, 2016, accessed on July 2, 2016.
  32. ^ BGH, judgment of September 20, 1974 , Az. I ZR 99/73 (Kammergericht), Schloss Tegel .
  33. ^ BGH, judgment of March 9, 1989 , Az. I ZR 54/87, Friesenhaus .
  34. ↑ OLG Cologne, judgment of February 25, 2003 , Az. 15 U 138/02, Wayangfiguren .
  35. ↑ cf. Stieper 331–333 TO 4/2011, Ohly 440 GRUR 5/2011.
  36. ↑ Katzenberger in Schricker, UrhR, 2nd ed. § 66 Rn. 54.
  37. ↑ Kammergericht, judgment of July 24, 2001 , Az. 5 U 9427/99, rights of use to press photos for the Internet ; BGH, judgment of July 5, 2001 , Az. I ZR 311/98, full text - Spiegel-CD-Rom .
  38. ^ OGH on February 1, 2000 , reference number 4Ob15 / 00k, Webcam Vorarlberg .
  39. ↑ Peter Schüler, Peter König, Dorothee Wiegand: Expedition in 3D. in: c't. Hanover 2007, 21, p. 84. ISSN  0724-8679
  40. ↑ Schulze, in: Dreier / Schulze, UrhG 4 2013, § 72, Rn. 6th
  41. ↑ a b c d Thum, in: Wandtke / Bullinger, UrhG, 3 2009, § 72, Rn. 15th
  42. ^ LG Berlin, judgment of May 3, 2007 , Az. 27 O 227/07, full text.
  43. ^ BGH, judgment of July 20, 2006 , Az. I ZR 185/03, full text.
  44. ^ District Court Munich I , judgment of March 10, 1987, Az. 21 S 20861/86, GRUR 1987, 436.
  45. ↑ OLG Hamm, judgment of July 21, 2004 , Az. 3 U 77/04, full text.

literature

  • Christian W. Eggers: Quick Guide Image Rights, Springer Gabler, Wiesbaden 2017, ISBN 978-3-658-18069-0 .
  • Thomas Dreier, Gernot Schulze: Copyright Law. Comment. CH Beck, 4th edition, Munich 2013, ISBN 978-3-406-62747-7 .
  • Artur-Axel Wandtke , Winfried Bullinger: Practical commentary on copyright , CH Beck, 3rd edition, Munich 2009, ISBN 978-3-406-56666-0 .
  • Wolfgang Rau: Right for photographers. The guide for photographic practice. Galileo Press, Bonn 2012, ISBN 978-3-8362-1795-8 .
  • Gernot Schulze, Torsten Bettinger: Revival of copyright protection in public domain photographs. In: Commercial legal protection and copyright (GRUR) . CH Beck, Munich 2000, ISSN  0016-9420 , pp. 12-18.
  • Fabian Steinhauer: Your own picture. Constitutions of the image law discourses around 1900 (Scientific treatises and speeches on philosophy, politics and intellectual history, Volume 74), Duncker & Humblot, Berlin 2013, ISBN 978-3-428-84051-9 .
  • Florian Wagenknecht, Dennis Tölle: Right on the picture . Guide to photo rights for photographers and creatives. dpunkt Press, Bonn 2012, ISBN 978-3-86490-010-5 .
  • Endress Wanckel, Photo and Image Rights, 5th fully updated edition 2017, CH Beck, ISBN 978-3-406-71222-7 .

Web links

Wikisource: Image rights  - sources and full texts

information

German laws

German decisions

Austrian laws

Austrian decisions

Great Britain

Spanish laws

EU directives

  • Council Directive 93/98 / EEC (PDF)of October 29, 1993 on the harmonization of the term of protection of copyright and certain related rights, updated in 2007 by Directive 2006/116 / EC (PDF)
  • Directive 2001/29 / EC (PDF) ofthe European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society
  • Directive 2001/84 / EC (PDF) ofthe European Parliament and of the Council of September 27, 2001 on the resale right of the author of the original of a work of art

United States

Russia

International agreements

This version was added to the list of articles worth reading on March 22, 2005 .