A photographic work within the meaning of the Berne Convention is in accordance with Recital 17 of the EU Directive on Term of Protection is an individual, photographic work that depicts the author 's own intellectual creation and in which his personality is expressed. The degree of originality required for this comes according to Article 6 of the directive only allows photographs that represent individual works in the sense that they are the result of their own intellectual creation.
In the 19th century photography was valued less than painting and graphics and was only given a short term of protection from the date of creation. Over time, the term of protection was extended further and further. After the Second World War, people wanted to protect the photographs of professional photographers for longer, but not every simple snapshot . First in Austria with the amendment to the copyright law in 1953 and in Germany with the amendment and summary of the copyright law in 1965, the new category of photographic works as a work of photographic art was created, which was provided with the standard protection period.
Since the protection of photographs in the Member States was regulated differently, was the creation of a common internal market , the term in 1993 for the first time EU-wide unified by the term of protection Directive .
The implementation of the EU Term of Protection Directive led to a new version of the Copyright Act in 1995. According to this, a photographic work is one of the works protected as a personal intellectual creation ( Paragraph 1 No. 5 UrhG ). It represents a special photograph , which is distinguished by its design height of light images according to UrhG, reproductions acc. UrhG and unprotected images differentiate.
The work property can result from "special photographic features", for example, "that [the photo], thanks to an unusual perspective, distribution of light and shadow or contrast and depth of field, captures a mood that goes beyond the reproduction of the objective motif or would otherwise be of haunting expressiveness" . According to standard protection period ), whereas the protection period for photographs is only 50 years from the date of first publication or production (§ 72 Paragraph 3 UrhG).UrhG (just like the work of art), a photograph enjoys protection for 70 years after the death of the author (
To calculate the compensation for unauthorized use acc. VG Bild und Kunst can be used as a benchmark for photographic works, and the price list of the Mittelstandsgemeinschaft Foto-Marketing (MFM) for photographs . However, there are also judgments against the application of the MFM recommendation as a basis for calculating appropriate compensation. According to the Hanseatic Higher Regional Court in a ruling: "The Senate, however, has fundamental concerns about the MFM fee recommendations as one-sided remuneration concepts of an interest group of photographers. Accordingly, in its previous case law it has not applied the MFM recommendations or only with great reluctance" (ruling of 09/02/2009 - 5 U 8/08) The Berlin Regional Court 2015 also denied the general applicability of the MFM tables in a decision (judgment of 07/30/2015 - 16 O 410/14): "According to recent case law of the Chamber, the MFM -Recommendations [...] should no longer be used as a basis for determining the "appropriate" license fee "Paragraph 2, Clause 3 UrhG, the fee recommendations of
In 1999 the Federal Court of Justice dealt with the requirements for the protection of photographic works and photographs. The BGH rejected the opinion of the lower court, which had demanded for copyright protection as photographic works within the meaning of § 2 Paragraph 1 No. 5 UrhG that
“They showed their own creative character and design. An overall comparison with the pre-existing designs should result in creative peculiarities that clearly surpassed the craft and average. In the photos, however, no special photographic skills are revealed. "
The Federal Court of Justice stated:
“In this assessment, the appellate court assumed requirements for the protectability of photographs, which in any case no longer apply since July 1, 1995, i. H. the point in time at which Council Directive 93/98 / EEC on the harmonization of the term of protection of copyright and certain related rights of October 29, 1993 (OJ No. L 290/9) was to be implemented in accordance with Article 13 (1) and has also been implemented by the third law amending the copyright law of June 23, 1995 ( Federal Law Gazette I, p. 842 ) (Art. 3 para. 2 of the 3rd UrhG Amendment Act). According to Article 6 of the Directive, photographs are to be protected if they represent individual works in the sense that they are the result of the author's own intellectual creation (see also Recital 17 of the Directive). Accordingly, a special degree of creative design is not required for protection as a photographic work (see Schricker / Loewenheim , Copyright, 2nd edition, § 2 marginal note 33, 179; Schricker / Vogel loc. Cit. § 72 marginal note 21; Nordemann / Vinck in Fromm / Nordemann, Copyright, 9th edition, § 2 marginal note 74; Hertin ibid. § 72 marginal note 2; Heitland, The protection of photography in copyright law in Germany, France and the United States of America, 1995, p. 60 ff .; Platena, Das Lichtbild im Copyright, 1998, p. 233 ff .; A. Nordemann / Mielke, ZUM 1996, 214, 216). "
At the end of 2013, the Cologne Regional Court decided in a proceeding about pictures by Horst Wackerbarth from his series “The Red Couch”. The court found that the vast majority of his motifs were only protected as photographs and were therefore not subject to protection against copying. Only those recordings in which Wackerbarth deliberately staged are photographic works and enjoy full copyright protection. This included photos showing a piglet on the couch or a diver in full gear. The basic idea of his “Gallery of Mankind”, in which he depicts people on the red couch in their own living environment and the resulting images would not have sufficient individuality to be copyrighted works .
Similar to the German, the Austrian copyright also distinguishes between the (simple) ancillary copyright protection according toCopyright Act (öUrhG) and protection as a work of photo art (photographic work) according to para. 2 ÖUrhG. Photographic works are defined in the law as works that have been produced by a photographic process or by a process similar to photography. In practice, the main difference between performance and plant protection is the duration of protection: while the protection of a (simple) photograph expires 50 years after it was taken or, if it was published during this period, 50 years after its publication, protection ends of the photographic work 70 years after the death of the author.
Works are only peculiar spiritual creations. Based on this, the older Austrian case law denied plant security about four advertising photos of skiers because they differed “in nothing” from conventional advertising photos; a number of recordings of historically significant sites were not granted factory protection because they remained “without any special artistic design”. This line of jurisprudence changed with the 2001 Eurobike decision 'by the Supreme Court (OGH). In it, the Supreme Court found that the protection requirements had been reduced with the entry into force of the Term of Protection Directive on April 1, 1996. Since then, the focus has been on whether the photography is “the result of the author's own intellectual creation without requiring a special degree of originality”. The decisive factor is "that an individual assignment between the photograph and the photographer is possible insofar as his personality is expressed on the basis of the design means he has chosen (motif, angle of view, lighting, etc.)," which is also the case with the "mass of amateur photographers who create everyday scenes in the form of landscape, person or vacation photos ", is the case. Insofar as previous jurisprudence has required photographic works to stand out from the everyday, common, and usually produced by means of a special mental processing, this cannot be adhered to - from now on “everyday, 'usual' 'landscape, portrait or advertising photos” are also photographic works "If a visual design by the photographer is expressed in them, the result may hardly differ from similar photographs by other photographers".
Since then, the Supreme Court has maintained the lowering of the protection requirements implemented in Eurobike in constant case law. According to the developed standards, two-dimensional reproductions of objects should also have the character of a work, "if the self-imposed task of achieving an image that is as true to life as possible allows sufficient leeway for individual design". For example, lifelike photos of fruits, vines and leaves in a book about the most important grape varieties were also regarded as photographic works.
Against this background, in the opinion of the literature, what remains for mere simple photo protection is mainly automatic recordings, computer-controlled photos and satellite photos, which do not require any direct human and therefore creative participation. The protection of images also requires a certain amount of recording activity, which according to the literature should be mere photocopies. In the opinion of the Supreme Court, the mere photographing of existing photographs does not result in any new performance protection; On the other hand, literature wants to grant (at least) performance protection to photographic recordings of paintings. Photographic works are always protected as (simple) photographs.
According to Art. 2 Para. 2 lit. g of the Copyright Act (URG). As with all other works, it is a prerequisite that the recordings are intellectual creations with an individual character (Art. 2 Para. 1 URG). In Switzerland - unlike in Germany and Austria - there is no related protective right that also grants protection to non-creative photographs.
The individual character of a photograph can manifest itself in various ways, for example in the choice of the depicted object, the image section and the time of release, the use of a specific lens, filters or a special film, the setting of focus and exposure as well as the Processing of the negative. In its Bob Marley decision, the Federal Court affirmed, for example, the protection of a recording of Marley taken as a “ snapshot ” at a concert with reference to the successful selection of the image section and the shutter release time; The recording has an individual character due to the "special facial expressions and posture of the depicted". The decision was received quite controversially in the literature.
The field of craft (everyday) photography, on the other hand, tended to remain unprotected under copyright law. In 2003, the Federal Supreme Court regarded a staged photograph of a person for a newspaper as unprotected because the freedom of design when photographing the person was "not exploited either in terms of photo technology or in conceptual terms", but rather the photograph was designed in such a way that it was “different from the commonplace does not take off ". In a decision from 2012, the commercial court of the canton of Aargau saw a press photo showing an entrepreneur with his wife and daughter sitting on the edge of the pool as unprotected by copyright, as the photographer did not use the scope for design and the arrangement of the people is obvious. On the other hand, the commercial court considered a photo that shows the entrepreneur leaning out of the window of his New York suite and on which he made the victory sign with his right hand against the background of the UN headquarters, which in turn was reflected in the hotel window . The arrangement of the individual picture components and the frame that they form in relation to one another, as well as the distribution of light and shadow, contribute to this; In the choice of the image section and the release time, the human will to create is evident, the reflection of the gesture gives the image a “special optical effect”. In a decision from 2016, the appellate court of the canton of Basel-Stadt refused copyright protection to a panorama photo of the city of Basel made by the Basel Minster (picture opposite), because the image detail and proportions are not original or individual, but rather a picture , which - “especially with the technical aids available today” - could be achieved by others in the same or at least very similar way.
In November 2017, the Federal Council passed a draft for a copyright revision. This proposes to the Federal Assembly to abandon the previous approach to protecting photographers; for example, "[f] photographic reproductions and reproductions of three-dimensional objects produced using a method similar to photography [...] are to be considered works, even if they have no individual character"; this protection is to expire 50 years after production. The Federal Council justified its proposal with the fact that photographs, “the z. B. documenting current events, or product photographs at the highest level of craftsmanship "often remained unprotected. The photographers who created these images could “not defend themselves against the further use of their images and also not earn any income with them”; the problem has increased with the Internet, "since photographs can be downloaded and reused in the easiest way". A remedy is to be found with a “special protection” that is restricted in comparison to copyright law. The National Council approved the Federal Council's proposal in December 2018. Detailed advice in the Council of States is still pending (as of March 2019).
The Danish Copyright Act (lov om ophavsret) , here used as a basis in the text of the amendments of 23 October 2014, for photographic works (Fotografisk Værker) full plant security, for simple photographs (fotografiske billeder) related right (§ 70 para. 2) . The differences in the scope of protection are relatively small. However, the term of protection for photographic works is 70 years from the death of the author (Section 63 (1)), whereas for simple photographs it is only 50 years from their production (Section 70 (2)). Simple photographs from before 1970 are not protected (Section 91 (5)).
Until the implementation of the EU Term of Protection Directive in 1995, all photographs in Denmark - regardless of their creative quality - were uniformly protected by a special law.
American copyright law only recognizes the protection of works for photographic products; an ancillary service protection as in Germany or Austria is alien to US law. After there had been doubts about the protection of photographic products in judicial practice, their protection was enshrined in the Copyright Act in 1865 . From a systematic point of view, photography is now recognized as an expressly named sub-category of the class of pictorial, graphic or plastic works as a subject of protection.
Authorship. The photographer is the author of a photograph. However, a photograph can also be created with co-authorship - as a joint work - for example if someone other than the photographer is largely responsible for the arrangement of the subject and the arrangement of the backdrops and possibly even gives instructions on how to align the camera himself.
Protection requirements. As in other countries, photography protection in the USA is not designed as a sui generis right : not every product that is technically a photograph triggers copyright protection. As with other protected works, under American law also applies to photographs that they are only protected if and to the extent that theyembodyoriginality (original expression) . The originality can be based on various factors; In judicial practice, for example, the orientation of the subject, the lighting, the angle of view, the choice of camera and the conceptual physical expression of a photographed person are recognized. In some cases, the possible variants of originality are roughly divided into the categories “originality in the execution”, “originality in the definition of the subject matter” and “originality in the selection of the right time”. Overall, a very low protection threshold can be identified in the case law.
Never / Never identify three scenarios in which courts have failed to protect. The first case relates to such recordings of "slavish copying" (slavish copying) emerge. Independent protection was denied to photographs that were mere, indistinguishable copies of existing photographs or paintings. A second case consists of recordings that are designed to meticulously imitate an existing one, in that the new photographer tries to adopt the decisions of the original photographer in terms of execution, definition of the subject and selection of the right time as best as possible. Such recordings lack an independent creation. The third scenario concerns cases of insufficient originality. This affects photographs which, to a certain extent, express the photographer's personal decisions, but these decisions are to be regarded as so banal and thoughtless that the requirement for originality is not met. In the literature, for example, it is argued that automatically generated images from surveillance cameras and satellites should not be included in copyright protection.
Derivative works. Whether photographs of protected works (e.g. photos of a statue) are derivative works of these works is highly controversial in the case law and is assessed differently by different courts of appeal in the USA; the question has not yet been clarified by the highest court.
Scope of protection. The protection of a photograph not only prevents photographic reproduction by third parties, but also, for example, a drawing or any other form of unauthorized copying.
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- OGH September 12, 2001, 4 Ob 179 / 01d = ÖBl 2003, 39, 42 - Eurobike .
- OGH September 12, 2001, 4 Ob 179 / 01d = ÖBl 2003, 39, 42 - Eurobike .
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- OGH December 17, 2002, 4 Ob 274 / 02a = MR 2003, 162, 165 - Felsritzbild ; OGH December 16, 2003, 4 Ob 221 / 03h = MR 2004, 117, 118 - Weinatlas .
- OGH December 16, 2003, 4 Ob 221 / 03h = MR 2004, 117, 118 - Weinatlas .
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- Tonninger in Kucsko / Handig, copyright , 2nd edition 2017, § 73 Rn. 8th; Walter, Austrian Copyright Law (1st part) , 2008, Rn. 1588.
- OGH September 8, 2009, 4 Ob 115 / 09d = MR 2009, 367 (with note Walter), 368 - passport photos II .
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- OGH September 12, 2001, 4 Ob 179 / 01d = ÖBl 2003, 39, 41 - Eurobike ; OGH May 25, 2004, 4 Ob 115 / 04x = MR 2005, 25 (with note Walter), 27 = ÖBl 2004, 224, 225 - Beautiful Upper Austrians ; Tonninger in Kucsko / Handig, copyright , 2nd edition 2017, § 73 marginal no. 11; Walter, Austrian Copyright Law (1st part) , 2008, Rn. 205. Basically: Robert Dittrich, Are photographic works simultaneously photographic images? , in: Austrian sheets for industrial property rights and copyright , Vol. 27, No. 5, 1978, pp. 113–115.
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- BGE 130 III 168, 175 = sic! 2004, 395 (with illustration) = Medialex 2004, 99 (with approval by Egloff) - Bob Marley .
- Critical to the justification of the BGer for example Ruth Arnet, Die Fotografie - “ Problem child of copyright” ?: Considerations on the “Bob Marley” decision of the Federal Supreme Court , in: Current legal practice , Vol. 14, No. 1, 2005, p. 67 –72, here p. 70 f .; Gitti Hug, Bob Marley vs Christoph Meili: a snapshot , in: Journal for Intellectual Property, Information and Competition Law (sic!) , Vol. 9, No. 1, 2005, pp. 57-65 (also online via sic-online .ch ); Mischa Senn, How a photograph becomes a picture: Photography from a picture-theoretical and copyright perspective , in: Zeitschrift für Immaterialgüter-, Informations- und Competitionrecht (sic!) , Vol. 19, No. 3, 2015, pp. 137–154 , here p. 152 f. (insufficient individuality). In the end approving: Willi Egloff, comments on the Federal Court decision of September 5, 2003 (4C.117 / 2003) , in: Medialex , No. 2, 2004, p. 103; Peter Mosimann and Peter Herzog, On Photography as a Copyright Work - Comments on the Federal Supreme Court decision of September 5, 2003, "Bob Marley" , in: Journal of Intellectual Property, Information and Competition Law (sic!) , Vol. 8, No. 9, 2004, pp. 705–708, here pp. 706 ff. (Also online via sic-online.ch ).
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- Never / Never, Never on Copyright , Status: 103. EL 2017, §§ 2A.08 [E]  [a] [i], 2A.08 [E] ; in detail Hughes, The Photographer's Copyright , 2012, op.cit., p. 343 ff.
- 17 USC § 102 (a) (5) , 17 USC § 101 .
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [b].
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [c].
- Never / Never, Never on Copyright , as of 103. EL 2017, § 2A.08 [E]  [a], with reference to Burrow-Giles Lithographic Co. v. Sarony , 111 US 53,58 (1884).
- Never / Never, Never on Copyright , as of: 103. EL 2017, § 2A.08 [E]  [a] [i], with comprehensive information on case law.
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [a] [i].
- Nimmer / Nimmer, Never on Copyright , Status: 103. EL 2017, §§ 2A.08 [E]  [a] [i] (“The originality requirement for photographs has therefore come to be expansively understood. It effectively covers just about any set of choices made by the person producing the photograph, before it is actually taken. Consequently, almost any photograph may claim the necessary originality to support a photograph […] ”), 2A.08 [E]  [b]. Critical to the low protection requirements: Ysolde Gendreau, United States , in: Gendreau et al., Copyright and Photographs: An International Survey , op.cit., 1999, p. 306 f. Comprehensive on the reasons for the broad understanding of originality in photographs: Hughes, The Photographer's Copyright , 2012, op.cit., P. 392 ff.
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [b] [i]. See, for example, Bridgeman Art Library, Ltd. v. Corel Corp., Inc. , 25 F. Supp. 2d 421 (SDNY 1998) (“While it may be assumed that this required both skill and effort, there was no spark of originality - indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances. ”).
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [b] [ii]. See, for example, Wallace Computer Serv. Adams Business Forms , 837 F. Supp. 1413, 1417 (ND Ill. 1993).
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [b] [iii].
- Hughes, The Photographer's Copyright , 2012, op.cit., Pp. 380 f.
- Detailed information on the dispute: Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [a] [ii].
- Never / Never, Never on Copyright , Status: 103. EL 2017, § 2A.08 [E]  [c].