Image copyright (Germany)

In Germany, photo rights or ""Bildrechte" are the copyrights that are attached to the "author" of the photograph and are specified in the "Law for Copyright and similar Protection" ("Gesetz über Urheberrecht und verwandte Schutzrechte [ [http://bundesrecht.juris.de/urhg/BJNR012730965.html UrhG - Gesetz über Urheberrecht und verwandte Schutzrechte ] ] "). These rights deal with rights of reproduction, distribution, modification, attribution, and prohibitions against illegal modification or reproduction. The ownership rights of a picture are treated in the broader "art copyright laws". Furthermore, if a museum or gallery owns a work of art or a photograph, they are permitted make their own requirements as to marketing on illustrations and reproductions of their property. This relates to the German legal concept of the right of owner to undisturbed possession.

Periods of protection

Photos ("Lichtbilder")

According to § 72 Abs. 3 UrhG, copyrights for most photographs and pictures expire fifty years after the most recent publication. If the picture is not in print or distribution for a period of 50 years, then the protection ends, but as long as the work appears at least once in that period, the period of protection is extended by another 50 years. For example, if a photo is published in the year 2000 but is not printed again until 2049, the protection will be extended until 2099.

Photo works ("Lichtbildwerke")

Initially, family, vacation, and other photographs taken spontaneously by individuals were not treated as photographs for the purposes of copyright. Today, these are termed "photo works". Photo works differ from general photos by personal mental creation (§ 2 UrhG). The copyright of a photo works expires (§2 64 UrhG) seventy years after the death of the author (p.m.a.).

Photos as documents of contemporary history

European Union law eliminated the concept of "historical photos" on 1 July 1995.

Protection of reproductions

As in most countries, to reproduce a copyright protected photo, the permission of the copyright owner must be obtained, and in some cases royalties paid. Reproduction of public domain depends on the type of material.

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 a claim of ownership. In fact in 1989, the then West German Bundesgerichtshof (supreme court) judged that identical reproductions as noted above cannot be protected by copyright.

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 in it of itself does not constitute "artistic work", but sound and specialist methods used to do so does. 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 Supreme 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 United States a Federal court decided in its 1999 case "Bridgeman Art Library vs. Corel Corporation" that original-faithful photographies of paintings as not copyrightable, since the originality is missing. (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.

So, a raw photography and/or reproduction of a public-domain original is published in a book, then the predominant jurisdiction assumes this illustration can be reproduced at will without agreement of the photographer and the publishing house.

Three-dimensional motives

The photography of three-dimensional motives always creates a photo (or sometimes also a photo work) which is protected under copyright law. This has to do with the creative process, as the photographer mus select a location, lighting, etc...

International agreements

The revised Bern agreement copyright-applies (RBUe) (BGBl. 1973 II S. 1071, 1985 II S. 81), originally the Bernese agreement, to the protection of works of the literature and art from 9 September 1886. The agreement 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. This applies to publications of a German work outside of Germany.

Beyond that there is the international 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). This is enforceable through INTERPOL.

References