Nowadays, drones are used by both professional and amateur photographers to take aerial photographs of landscapes, buildings and the like. However, the use of the photos taken may be subject to copyright restrictions.
The Federal Court of Justice (BGH) (judgment of 23.10.2024, ref. I ZR 67/23) has now dealt with the admissibility of drone recordings under copyright law.
Dispute over drone footage of artworks
A photographer used a drone to take pictures of art installations on slag heaps in the Ruhr region. The collecting society Bild-Kunst, which represents the rights of artists, demanded license fees and compensation.
Their reasoning: The images were not protected by the freedom of panorama pursuant to Section 59 (1) sentence 1 UrhG, as they were taken from the air.
Freedom of panorama under copyright law and its limits
Freedom of panorama, regulated in Section 59 (1) sentence 1 of the German Copyright Act (UrhG), allows you to photograph works that are permanently visible to the public, such as buildings or monuments, and to distribute the images. However, this freedom only applies if the photograph is taken from generally accessible locations - such as streets, paths or squares.
Restrictions apply to:
- aids such as ladders or drones: The BGH clarifies that photographs taken from special perspectives are not covered by the freedom of panorama. The so-called "freedom of panorama" only states that it is permissible to reproduce, distribute and publicly reproduce works that are permanently located on public paths, streets or squares by means of painting or graphics, photographs or film.
- Aerial photographs: Airspace is not a public place within the meaning of freedom of panorama. The Federal Court of Justice has already ruled that images taken from a ladder are no longer covered by the privilege of freedom of panorama, as this does not include airspace according to its wording.
The judgment of the BGH
The BGH ruled that drone images taken from the air are not covered by freedom of panorama. This means that the images may not be distributed or used commercially without the consent of the rights holder. This decision is a consistent continuation of previous case law and sets a clear line for future cases.
Consequences for photographers and drone pilots
The ruling has far-reaching implications for amateur and professional photographers:
- Checking the perspective: The decisive factor is whether the shot would have been possible at all without a drone.
- License requirement for drone recordings: Aerial photography of copyrighted works may require permission from the rights holder.
- Danger of warnings: Anyone who publishes images without consent risks claims for damages.
Practical tips: How to avoid legal pitfalls
- Check whether the subject is protected by copyright before taking the photo.
- If necessary, obtain permission from the rights holder.
- Avoid taking pictures from perspectives that can only be achieved with drones or other aids.
- Find out about the applicable drone laws and flight restrictions.
Conclusion and outlook
The BGH ruling brings clarity to the discussion about drone photography and freedom of panorama. For photographers and drone pilots, this means checking carefully whether their images can be used legally. Anyone who is unsure should seek legal advice in order to avoid warnings or expensive claims for damages.
