No Freedom of Panorama for Aerial Drone Photography – German Federal Court (BGH) Ruling I ZR 67/23
Drones are widely used in various applications, with aerial photography being especially popular. However, copyright laws must be observed. In a ruling dated October 23, 2024, the German Federal Court of Justice (BGH) determined that aerial photos of publicly accessible and protected artworks taken with drones infringe copyright and are not covered under the “Freedom of Panorama” exception (Case No.: I ZR 67/23).
The Freedom of Panorama is a limitation on copyright regulated by Section 59 of the German Copyright Act. According to this regulation, works located in public paths, streets, or squares can be reproduced through painting, graphics, photography, or film. These photos or other reproductions can also be published, as noted by MTR Legal, a commercial law firm advising on intellectual property and copyright law.
Aerial Photography Not Protected by Freedom of Panorama
A key point of contention was the scope of this Freedom of Panorama and whether it included aerial images. The BGH has now clarified in a landmark decision that drone-captured aerial photos of protected, publicly accessible artworks are not covered by the Freedom of Panorama, thereby strengthening copyright protection.
The BGH ruling was based on the following case: the defendant, a publishing house, had published a book on the Ruhr area’s slag heaps, which included drone-captured aerial images showcasing various art installations on these heaps. The creators of these artworks had contracted with a collecting society responsible for managing the rights and claims of authors.
The collecting society argued that the book’s aerial photos of the art installations infringed copyright since these images were not covered by the Freedom of Panorama. As a result, it filed suit against the publisher for injunctive relief and damages.
BGH Confirms Copyright Infringement
The claims largely succeeded in the Regional Court of Bonn and the Appeals Court of Hamm. The BGH also rejected the publishing house’s appeal. The court in Karlsruhe first noted that the publisher’s depiction of copyrighted works infringed on the authors’ rights to reproduce and distribute their works. The reproduction and publication of an aerial photo taken by a drone do not fall under the Freedom of Panorama in accordance with Section 59 (1), Sentence 1 of the German Copyright Act.
The BGH’s I. Civil Senate, which oversees copyright issues, explained that the Freedom of Panorama is intended to allow freedom for works that are part of a public landscape or street scene, accessible to the general public. When interpreting the Freedom of Panorama under the Copyright Act and balancing the freedom of information and communication of users on the one hand and the legitimate interests of authors in being adequately involved in the economic exploitation of their works on the other, the interests of authors should be prioritized in cases of drone-captured aerial photography, the Senate stated.
For practical application, this means that photos of copyright-protected artworks must be taken from locations already accessible to the public, such as from street level. Unlike drone photos taken from the air, these qualify for the Freedom of Panorama exception.
Comprehensive Copyright Protection
Works by authors, musicians, painters, and photographers are comprehensively protected by copyright, which also covers works of visual and applied arts. The author automatically holds the rights to exploit their work, which they may also assign to a collecting society. Additionally, they can grant third parties usage rights to their work.
This copyright is limited by the Freedom of Panorama, which only allows for the use of artworks that are permanently located on public streets and squares and can be perceived by the public. However, with drone photography, copyright infringements may arise, as suggested by the BGH ruling. Cease-and-desist letters, injunctions, and damages claims can be consequences of such violations.
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