Image copyright (Germany)
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In Germany, picture rights or "Bildrechte" are the copyrights attached to the author of photography and are specified in the "Law for Copyright and similar Protection" ("Gesetz über Urheberrecht und verwandte Schutzrechte"). These rights deal with rights of reproduction, distribution and adjustment and copyrights, the right of acknowledge the name of the author and prohibitions against distortion. The right at the own picture is treated in the "art copyright law". Furthermore museums and other owners of art items mark their requirements for marketing on illustrations and reproductions of their property as well as picture rights if the protection period ran out. This is in reference to the right of owner to undisturbed possession.
[edit] Periods of protection
[edit] Photos (Lichtbilder)
According to § 72 Abs. 3 UrhG copyrights for (simple) photos expire fifty years after the first appearance of the picture (or after first permitted public rendition for instance in the television or Internet, if this date lies in former times). After non-publication within fifty the period of protection expires. This can result in a hundred-year period of protection. Example: A photo from the year 2000 is published scarcely before the fifty-period of one year in the year 2050 for the first time and enjoys then a protection up to end of 2100.
[edit] Photo works (Lichtbildwerke)
Originally press pictures or vacation photos were called "photo works" because they were made spontanously or under time pressure and were not considered "creations". By now Jurisdiction calls these photos "photo works". Photo works differ from (simple) photos by personal mental creation (§ 2 UrhG). The copyright of photo works expires (§2 64 UrhG) seventy years after the death of the author (p.m.a.).
[edit] Photos as documents of contemporary history
Among the adjustments to EU-law was the waiving of the term of the "historical photos" on 1 July 1995.
[edit] Protection of reproductions
For reproduction of copyright protected materials the agreement of the author has to be requested. (except in the case of legal barriers). Reproduction of in common-free material depends on whether it concerns a two or a three-dimensional object.
[edit] Two-dimensional Originals
It is generally agreed, that a mechanical copy (e.g. Photocopy), digitizing (e.g. with an scanner) as well as the reproduction of public-domain typographic originals (books, documents, etc.) and photos of public-domain originals (picture from picture) do not create an own protection right.
The Bundesgerichtshof (supreme court) judged in 1989 that reproductions "true to original" to be not capable of being protected by copyright. The case was about Photos of the publoc-domain engravings of Matthäus Merian.
The Oberlandesgericht Düsseldorf decided in 1996 that in the case of photographic Reproductions passed out as postcards with works from Joseph Beuys were not to be used as template for digitalisation. Photographing two-dimensional Templates does not consist in artistic work, but sound and specialistic Methods are to be used. The Expert was granted a protective period due to § 72 UrhG for up to 50 years after the first publishing.
This decision contradicts the opinion of the Federal High Court, which was affirmed again in 2000 (judgement from 7 December 2000, Telefonkarte (calling card), Az. I ZR 146/98): [...] Independently thereof the picture, for which the plaintiff claims the protection of § 72 UrhG , would have to be more its than a bare technical reproduction of an existing graphics. Because the technical reproduction procedure alone does not justify a photo protection (see BGH, judgement from 8 November 1989 - I ZR 14/88, GRUR 1990, 669, 673 - Bible reproduction, m.w. N.; Schricker/Vogel, copyright, 2. Aufl., § 72 UrhG Rdn. 22). Rather a minimum of personal mental performance is necessary, which is to be denied if a photo or a similarly manufactured product is not any more than the bare technical reproduction of an existing representation.
In the USA a court in 1999 in the decision Bridgeman Art Library vs. Corel Corporation did declare original-faithful photographies of painings as not copyrightable, since the originality is missing to Corel (United States District Court for the Southern District of New York, 18 February 1999). The software producer Corel Corp. had used slides of the Bridgeman Art Library for the picture collection of its own CD-ROM.
A further Argument against the protection of Picture Reproductions is that the Protection period may thus be prolonged at will.
So, a raw photography and/or reproduction of a public-domain original is published in a book, then the predominant iurisdiction assumes this illustration can be reproduced at will without agreement of the photographer and the publishing house.
[edit] Three-dimensional motives
The photography of three-dimensional motives always creates a photo (or sometimes also a photo work) which is in copyright matters protected. The photographer can bring in its creativity by the selection of the location.
[edit] Data bases
For couches digitized in common-free collecting mains in a data base (§ 87a UrhG de) forwards, which for instance with large-scale digitization projects and extensive Websites the case might be, then the withdrawal is possible only in accordance with condition § of the 87b UrhG. Repeated and systematic withdrawals could the entitled interests of the data base manufacturer ("investment protection") hurt. The protection of 15 years extends whenever a substantial investment takes place. See also data base work.
[edit] Characteristics
[edit] Monuments and modern architecture
Works as for instance monuments, which are durably at roads and public places, may be photographed without heistation, also schneemaenner, because they are passing from nature. The realm day veiled by Christo and Jeanne Claude in the year 1995 is however, because it was passing neither from duration nor from nature, in copyright matters protected (BGH 24 January 2002). This panorama liberty (all further see there) does not apply however e.g. in France. In opinion of the legal comments and technical literature also lasting attached maps or text boards fall in the streetscape under the panorama or streetscape liberty.
[edit] Anonymous works
With anonymous works copyright expires 70 years after the publication or - with Nichtveroeffentlichung - after the creation (§ 66 UrhG). Of an imprudent application to older photographies, whose departure does not call a photographer, is to be warned however urgently. On the one hand the regulation does not apply over anonymous works, if the author in the period of 70 years revealed his identity after production of the photography. On the other hand the earlier right existing to 1995 exhibited large regulations, which are still to be considered 1995 manufactured photographies with before 1 July. To unpublished works the old version did not apply, just as little to works, for the first time which were only published postum (after the death of the author): Although the author does not admit was, a legal successor with the reference to the authority and the death date of the author could proceed against a Erstveroeffentlichung made from third page 70 years after the production. On the other hand the exception of the works of the forming arts stated in paragraph 4 of the old version of § 66 UrhG does not concern the photo works (Katzenberger in Schricker, UrhR, 2. Aufl. § 66 Rdnr. 54).
[edit] The picture quotation after § 51 UrhG
Just like with text quotations the possibility consists to use also a in copyright matters protected picture as picture quotation after § 51 UrhG "to an extent" ordered by the purpose in scientific and popular-scientific works. A condition is that the picture is not changed and a correct indication of source takes place. The picture quotation is usually regarded as "large quotation", since the entire picture will show. The film quotation hang-give usually as "small quotation" one regards, because only a Filmauschnitt will show.
[edit] Right grant
If freelance active press photographers hand their work over to the casting in the print medium, then this right grant covers in principle not also the right for the use of the photos on the InterNet homepage, in InterNet archives or on CD (Court of Appeal, 24 July 2001, Az. 5 U 9427/99, rights to use at pressefotos for the InterNet; BGH 5 July 2001, I ZR 311/98, mirror CD-Rom).
[edit] Protection of first editions - Editio princeps
Left works, which remained unpublished, are at expiration of the period of protection or if they were protected never, in accordance with § 71 UrhG for 25 years protected (details see Editio princeps).
[edit] Aerial photograph photographs and military plants
In Germany a duty to obtain a permit applied to aerial photograph photographs until 1990. According to the article 37 of the 3. Right clearing law this duty to obtain a permit for aerial photograph photographs was void. However itself out § 109 g Abs can. 1 of the penal code restrictions for the photography of military plants or procedures results in, if thereby the security of the Federal Republic of Germany or the impact force of the troop is endangered. The same applies after § 109 g Abs. 2 generally for aerial photos. Out § 5 Abs. it results 2 law governing safety zone that a characterized save area may not be photographed without permission.
[edit] Privatsphaere
According to German law it is illegal in addition to spaehen over walls or not overcome other obstacles or aids such as telephotos to use leaders or also aircraft in order to penetrate into the protected privatsphaere (prominent) of a person. (BGH, judgement from 9 December 2003, AZ: VI ZR 373/02, - aerial photograph photographs of the holiday home.)
[edit] Rights at the own pictures
The right at the own picture is a personal right. Each person may determine in principle even whether at all and in which context pictures are published by it. Restrictions apply however to "persons of contemporary history", like politicians, sportsmen and artists.
[edit] Search photo
In Germany portraits may be multiplied, spread "without consent of the entitled one as well as the illustrating or its member and placed publicly to the schau" after § 24 KUG (exceptions in the public interest) of the authorities for purposes of the justice and public security. This concerns the right at the own picture of the presumed author. Copyrights of the photographer become through § 45 Abs. 2 UrhG reduced. Such picture publications in press organs (or on the television, see file reference XY unresolved...) are permissible only in the context of search calls. The right at the own picture of the presumed author must withdraw, if this can be estimated as a person of contemporary history (§ 23 Abs. 1 NR. 1 KUG). To be considered it should however in each case that after a condemnation and a completion of a punishment the further pictorial report refunding of the Resozialisierung could stand in the way (see Pressecodex) and therefore to be omitted if necessary has. Is important: Only official one of search calls can use photographies without agreement of the photographer. If search pictures in the journalistic reporting or in the InterNet are used, then the rights must be normally acquired, since § as legal basis separates 45 UrhG.
[edit] Cash notes
The publication of cash notes, for example by illustration in the InterNet, may not lead to the mistake acceptance, it with commercial to have to do to "genuine" money or be available other reproduction possibilities, otherwise they are illegitimate. Publishing Eurobank notes is however rightfully, if no more than one third of the light on the admission is not to be seen or the quality of the reproduction excludes a mistake possibility with genuine notes, however still stands under a general copyright reservation of the European central bank (§ 128 Abs. 1 NR. 1 of the law over irregularities (OWiG)).
[edit] Protection of illustrations after the design patent law
After the design patent law the owner of the right can control also the commercial illustration of the protected design patent.
The German course AG had itself registered the ICE course as design patents and required since 2001 for commercial illustrations a fee.
[edit] Picture rights in museums, archives and libraries
Museums, archives, libraries and other owners of cultural property (e.g. art articles) raise requirements for marketing on illustrations and reproductions of their property usually, even if the protection ran off after copyright. With the photographing prohibition rely museums, exhibitors, operators of caves with wall designs and others on their house right. Photographies, which under injury of the house right or against a photographing prohibition, whose illustration article is however in common-free, represent an interference in stranger of copyrights and not necessarily an interference in strange right. The house right to have in the sense of a right the use of a protected area does not seize directly the later publishing of photos of this area. For the use of a reproduction the owners require a reproduction fee in such a way specified, which represents usually no bare cost remuneration, but is graduated after the sample of copyright remuneration. A possible justification could lie in article 14 (property warranty) of the Basic Law. However with public collections the special rule of the owner overlaid of the purpose of the collection in the context of the public right. If special legal bases (in the case of archives this is the archives laws) exist or are subject the collection to a public-legal regime, then clear borders pulled to a marketing. The opponents of this marketing refer to the fact that such a practice leads responsible Federal law giver to from for the mental property the eternal patent right intended and at the same time also according to kind. 5 Abs. 1 of the Basic Law protected communication liberty contradicts. Cultural property is cultural common property/knowledge, which should be freely usable. There are also attempts to secure itself the picture rights at in common-free works mark-legally. The federal patents court has the attempt in the year 1997 to let the Mona Lisa register as picture mark prevented (BPatG from 25 November 1997, Mona Lisa as mark). Usual photographing prohibitions are at least for commercial purposes also in stations. These restrictions are often a component of the AGB of the respective transporting enterprises.
[edit] International agreements
As the most important international basis in the area the revised Bern agreement copyright-applies (RBUe) (BGBl. 1973 II S. 1071, 1985 II S. 81), originally Bernese agreement to the protection of works of the literature and art from 9 September 1886.
It requires generally at least 50 years period of protection for works for the death of the author, as well as at least 25 years for photographic works (art. 7 Abs. 4 RBUe) as minimum standard for the national legislation.
Beyond that there is the world copyright agreement from 6 September 1952 (BGBl. part of II/1955, S. 101 FF.) revised on 24 July 1971 in Paris (BGBl. part of II/1973, S. 1111 FF). The works of the members of the other contracting states are protected thereby like the works of the own citizens published in own area.
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This article is a translation: The first versions of this text base on the article de:Bildrechte from the German Wikipedia. The original aricle is published under the terms of GNU Free Documentation License. There is a list of authors availabel in the German Wikipedia. |
