BGH on the freedom of the seas, ahm, panorama

AIDA "kissing lips"

The freedom of panorama - an exception to copyright protection that permits depicting buildings and sometimes sculptures and other art works which are permanently located in a public place without the copyright's owner's permission - is an area of law in Europe that is so far not harmonized, and while some countries recognize the freedom of panorama,  others don't. The draft Directive on Copyright in the Single Digital Market does not provide for a compulsory freedom of panorama exception, despite a public consultation on the issue.

Germany is a member state that recognizes freedom of panorama in its national law. § 59(1) German Copyright Act reads (in an unofficial translation):

It is permissible to reproduce, disseminate and publicly reproduce works, which are permanently on public paths, streets or squares, by means of painting or graphics, by means of photographs or by film.

Feliks Büttner is the designer of the "kissing lips" painted on the bow of every cruise ship by the operator AIDA. He assigned the exclusive rights of use to AIDA. AIDA sued an operator of a website that offered excursions in connection with cruises and depicted an AIDA cruise ship with the kissing lips design. The website operator tried to avail itself of the freedom of panorama. AIDA argued that the "kissing lips" were not permanently on display in a public place, as the cruise ships moved about. In any case, the art work was not on display on a path, street or square, but rather on water...

Art on a truck.

The BGH sided with the defendant. § 59(1) was to be interpreted such that a work was display "on a public street" if it was visible from any place under the open sky accessible to the general public. This includes a harbor, although "harbour" was not specifically mentioned in the wording of the article. A work was "permanently" present in a public place even if it moved about, as long as it was destined to be in some public place for a prolonged period of time ("längere Zeit". Why this has to be assessed through the eyes of the general public, as the BGH indicates, and is not an objective standard eludes me).

The freedom of panorama therefore includes art on cruise ships, but more importantly, also art on cars, trucks, lorries, busses, street cars and other means of transportation. Therein lies the importance of this decision, since in a modern urban environment, it is almost impossible to take a picture without depicting some copyright protected work affixed to some form of transportation.

Decision of 27 April 2017 - I ZR 247/15 - AIDA Kussmund (only the media release has been published so far)