For detailed information about German copyright laws, see Wikipedia:Bildrechte on the German Wikipedia.
German law distinguishes between "photographic works" (Lichtbildwerke) and "photographs" (Lichtbilder). In general, photographic works (Lichtbildwerke), including works produced by processes similar to photography, are protected by copyright: see the Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberechtsgesetzes [UrhG] vom 9. September 1965) (Law on Copyright and Neighbouring Rights (Copyright Law) of September 9, 1965, as last amended by the Law of July 16, 1998), §2(1).5. The copyright in such works expires 70 years from the end of the calendar year in which the author's death occurs: UrhG, §§64 and 69. In Case No. I ZR 55/97, a 1999 decision of the Bundesgerichtshof (BGH, Federal Court of Justice of Germany), the court held that a work amounts to a Lichtbildwerk if it has an intrinsically creative character.
On the other hand, the copyright in a photograph (Lichtbild) and a work created in a similar way to a photograph expires 50 years after the publication of the photograph or after its first lawful communication to the public where such communication took place at an earlier date. If the photograph has not been published or lawfully communicated to the public, the copyright expires 50 years after it was taken: UrhG, §72. In this respect, Austrian law is similar to German law. In the Eurobike case (4 Ob 179/01d dated 12 September 2001) the Oberster Gerichtshof (Supreme Court) of Austria reviewed German legal literature on the matter and held that a work amounts to a Lichtbild only if there was no creative element in its creation. Examples of Lichtbilder mentioned in the case include photographs unintentionally taken when the shutter is accidentally released, photographs taken for criminal record purposes, and photographs taken automatically by machines such as photo booths and cameras mounted on aeroplanes for aerial surveys.
Reproducing a two-dimensional work does not meet the minimal threshold of originality required for the reproduction to be considered a Lichtbild: see the Bibelreproduktion case (BGH judgment of 8 November 1989, Case No. I ZR 14/88, GRUR 1990, 669, 673), the Telefonkarte case (BGH judgment of 7 December 2000, Case No. I ZR 146/98), and de:Bildrechte#Zweidimensionale Vorlagen. This is in line with the Wikimedia Foundation's position is that "faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain": see Commons:When to use the PD-Art tag.
|Period before image
is in public domain
|Types of works|
|70 years from end of year in which photographer died
(UrhG, §§2(1).5, 64, 69)
|Lichtbildwerke, such as the following:
||Lichtbilder, such as the following:|
(Bibelreproduktion (1989) and Telefonkarte (2000) cases)
|Photographs or scans of two-dimensional works that are in the public domain.|
Laws (Gesetze), ordinances (Verordnungen), official decrees (amtliche Erlasse), notices (Bekanntmachungen), court decisions (Entscheidungen) and official written policies on court decisions (amtlich verfaßte Leitsätze zu Entscheidungen) are in the public domain: UrhG, §5(1).
Freedom of panorama
According to UrhG, §59(1):
- works that are permanently located on public passageways, streets and squares; and
- the external appearance of architectural works
can be reproduced by painting, drawing, photography or cinematography, and the resulting reproductions can be distributed and published. The right to create such works is called Panoramafreiheit (freedom of panorama). Where works other than buildings are concerned, the two important elements that must be satisfied are (1) permanent location (2) in specified public locations. Thus, when the artists Christo and Jeanne-Claude created an installation work by wrapping the entire German Reichstag in Berlin with polypropylene fabric, freedom of panorama did not apply as the work was not intended to be a permanent installation: see the decision of the BGH dated 24 January 2002, Case No. I ZR 102/99, GRUR 2002, 605. If a work is located in a place where some device such as a ladder or even a helicopter must be used in order to photograph it, it cannot be considered as being in a public place. Furthermore, freedom of panorama in Germany does not apply to indoor places, even if they are publicly accessible: David Seiler, Fotografieren von und in Gebäuden [Photography of and inside Buildings], in visuell 5/2001, p. 50.
Although freedom of panorama applies to works permanently sited in a public place regardless of whether the work is in the public domain or still subject to copyright, in the latter case the copyright owner retains the following moral rights over his or her work:
- Right of publication (Veröffentlichungsrecht) – the right to decide whether and how the work is to be published: UrhG, §12.
- Right of attribution (Recht auf Anerkennung seiner Urheberschaft) – the right to have the work recognized as being authored by him or her, which includes the right to decide whether the work is to bear an author's designation and what designation is to be used: UrhG, §13.
- Right to prevent distortion of the work (Recht eine Entstellung oder eine andere Beeinträchtigung seines Werkes zu verbieten) – the right to prohibit any distortion or other mutilation of the work that would jeopardize his or her legitimate intellectual or personal interests in the work: UrhG, §14.
Where the copyright owner of a building or a work permanently displayed in a public place objects to a photograph of that building or work (or a modified derivative of such a photograph) being uploaded on to the Commons, the photograph should be nominated for deletion. Requests by copyright owners for photographs to be attributed in particular ways should also be respected.