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Thursday, 30 December 2010

The BGH and the photographs of Prussian castles

The IPKat almost missed these three "copyright-related" cases, which were decided by 5th Civil senate of German Bundesgerichtshof, which is the senate that is, inter alia, responsible for property law.

On 17 December 2010, the 5th Civil senate of German Bundesgerichtshof decided in three cases brought by the Prussian Palaces and Gardens Foundation Berlin-Brandenburg ("Stiftung Preußische Schlösser und Gärten Berlin-Brandenburg", "SPSG") against third parties that had taken and/or distributed pictures of the SPSG's gardens and palaces without the foundation's permission. The Bundesgerichtshof held that public foundations, such as the SPSG, which curate palaces, gardens, etc., own the exploitation rights for photographs taken of these facilities from within the property boundaries as well as for photographs which have been taken of the facilities for commercial use and exploitation.

Please click here to retrieve the court's detailed press release which the IPKat has translated and summarised below.


The first case (case reference: V ZR 45/10 of 17 December 2010) dealt with a law suit the SPSG had brought against a photo agency. The SPSG had claimed that the photo agency had commercially exploited photos of the SPSG's parks and palaces without. The court of appeal, the Higher Regional Court of Brandenburg had dismissed the SPSG's claim and taken the view that taking photographs and making films of the parks and palaces did not infringe the SPSG foundation's property right since the SPSG had allowed free access to the parks and palaces. As such, the exploitation rights for the photographs and films rested with the actual copyright owners rather than the SPSG.

On appeal, the Bundesgerichtshof saw things differently and referred the case back to the court of appeal. In its decision the curt referred to two precedents of the Bundesgerichtshof's 1st Civil Senate, which is the senate responsible for copyright matters: "Schloss Tegel" (case reference: I ZR 99/73) and "Friesenhaus (case reference: I ZR 54/87). In these decisions the Bundesgerichtshof's 1st Civil Senate had legally differentiated between pictures had been taken from outside the property boundaries and those that had been taken from within the property boundaries. The latter ones can be prohibited by the property owner since it is he who can determine the use of the land. The 5th Senate applied these precedents and took that the view that despite the fact the SPSG's legal interests were different to those of a private owner of a real estate property, since the SPSG was a public foundation and so had to pursue the common good ("Gemeinwohl") as its main interest, the SPSG nonetheless had no (public) duty to allow third parties to use the parks and palaces for their commercial purposes. The Higher Regional Court now has two decide the case again applying these legal principles to the facts of the case.

A second case dealt with the SPSG's claim against a film producer who was distributing DVDs of films about the city of Potsdam (case reference: V UR 45/10 of 17 December 2010). Since the (real estate property) rights of SPSG were obvious in this case, with the films having clearly been made from within the property of the SPSG, the Bundesgerichtshof was able to decide the case in favour of the SPSG without having to refer it back to the Higher Regional Court.

As regards to the SPSG's third lawsuit (case reference: V ZR 44/10 of 17 December 2010), a claim against an Internet platform which allowed the exploitation of third party photographs by photographers and photo agencies on its virtual forum, the Bundesgerichtshof referred to its recent precedent concerning Wireless Lan networks in the "Sommer unseres Lebens" (case reference: I ZR 121/08) and held that the claimant only had a duty of care in those cases where there was an obvious infringement of third party rights. Hence, an Internet portal which publishes photos was free from liability unless it has positive knowledge of the infringement. The mere fact that someone had shared the photos on the forum was not enough to constitute knowledge since it was impossible for the forum owners to determine whether the photos had been taken with permission and/or from within our outside the property boundaries.

Merpel summarises these three cases as follows: the decisions clarify that public proprietors of real estate property enjoy the same rights as private property owners: while neither can prevent that photos are being taken from outside the property boundaries, public and private owners alike nonetheless have identical rights to control photography which takes place within the property's boundaries.

The SPSG's website (picture top left) can be found here - it does include some very beautiful photographs of the respective parks and gardens.

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