Copyright: no freedom of panorama for drone photographs

Drone images are not subject to the freedom of panorama under copyright law, as clarified by the Federal Court of Justice in its ruling of October 23, 2024. Images of copyrighted sculptures, installations, paintings, etc. that were created using a drone may therefore not be used commercially, published in magazines or made publicly available online, e.g. on websites or in social media, without the consent of the author.

Under the title "Über alle Berge" ("Over all the mountains"), a book publisher had published a travel guide to mining slagheaps in the Ruhr region, which also included aerial photographs of landscape sculptures and installations on former slagheap sites taken with a drone. The publisher had not obtained the artists' consent for the works of art to be depicted. With regard to these photos, the Federal Court of Justice, like the previous instances, affirmed a claim for injunctive relief and damages by VG (Verwertungsgesellschaft) Bild-Kunst against the publisher.

Section 59 of the German Copyright Act (UrhG) grants anyone the right to photograph, film or draw or paint protected works (such as buildings, sculptures or murals) located in public places or paths and then publish them without the author's permission. This so-called freedom of panorama is intended to enable the free use of works insofar as they are part of the streetscape or landscape that can be perceived by the general public. According to the case law of the Federal Court of Justice (BGH), this also applies to works that are not directly accessible but can be seen from public roads or paths. If a work of art is set up in public places, the work is thus dedicated to the general public and the rights of the author are restricted to the extent that anyone may depict the work and exploit the images.

However, freedom of panorama does not protect images from every perspective, but only from the perspective that the general public can perceive from the public space, the BGH continued.
However, as soon as aids are used to obtain a different perspective - even if it is only a ladder - copyright law applies without restriction. This is based on the principle of interpreting exceptions to copyright protection narrowly in order to allow authors to participate as extensively as possible in the commercial use of their works.

The Federal Court of Justice has already ruled along these lines in the past, for example on artistic images on a cruise ship (so-called AIDA kissing mouth, judgment of 27.04.2017, I ZR 247/15) (see Panoramafreiheit auch bei Schiffen), which is why the current decision is not surprising and a more generous standard is unlikely to be applied in the future.

Back