No photos from the museum

The I. Civil Senate of the Federal Court of Justice, which is responsible, among other things, for copyright law, has ruled that photographs of the Civil Senate of the Federal Court of Justice has ruled that photographs of of (public domain) paintings or other two-dimensional works regularly enjoy enjoy photographic protection under § 72 UrhG. The Senate further ruled that the owner of a municipal art museum may demand that a visitor who, in violation of the the visitor in breach of the prohibition on taking photographs agreed in the contract by means of general terms and conditions, takes photographs of works exhibited in the museum and makes them publicly accessible on the Internet, as compensation for damages. of making them available to the public as damages.

The plaintiff operates the Reiss-Engelhorn Museum in Mannheim. In 1992, it had an employee photograph works of art exhibited there and works of art exhibited there and published these photographs in a publication. publication. 

The defendant is voluntarily responsible for the German-language edition of the Internet encyclopaedia Wikipedia with the central media archive Wikimedia Commons. The defendant has uploaded photographs to the media database Wikimedia Commons and made them available for public viewing. works - paintings and other objects - from the collection owned by the plaintiff. collection owned by the plaintiff. These works are all in the public domain, i.e. no longer protected by copyright due to the expiry of the term of protection (§ 64 UrhG). protected by copyright. Some of the photographs were taken from the plaintiff's publication. publication of the plaintiff, which the defendant had previously scanned. The remaining the defendant had taken himself during a visit to a museum in 2007 and had and made them available to Wikimedia Commons, waiving his copyright. made available. 

The plaintiff has sued the defendant for injunctive relief and for and reimbursement of the pre-litigation legal costs. It based its claim for injunctive relief with regard to the photographs scanned by the defendant photographs scanned by the defendant on the basis of copyright and ancillary copyright. With regard to the the photographs taken by the defendant himself, she invokes a violation of the inspection contract contract concluded with the defendant, which contained a prohibition on contract concluded with the defendant, which contained a prohibition on photography, as well as a exhibited objects.

The district court upheld the action. The appeal The defendant's appeal - insofar as it is relevant to the appeal - was unsuccessful. remained unsuccessful.

The Federal Supreme Court dismissed the appeal of the defendant. dismissed.

The uploading of the scanned images from the plaintiff's publication infringes the right conferred on the plaintiff by the photographer to make the the right to make the photographs publicly accessible (§ 97 para. 1 sentence 1 UrhG, § 72 (1) UrhG, § 19a UrhG). The photograph of a painting enjoys photographic image protection under § 72 (1) UrhG. In taking the photograph, the photographer of a number of creative circumstances, including location, distance, viewing circumstances, including the location, distance, angle of view, exposure and cropping of the photograph. of the photograph. For this reason, such photographs regularly achieve - as in the case in dispute - the minimum degree of personal intellectual achievement required for protection under § 72.1 UrhG. personal intellectual achievement.

By taking his own photographs on the occasion of a visit to the visit to the museum, the defendant breached the contractually agreed prohibition on taking photographs. The corresponding provision in the rules of use and the pictograms with a crossed-out camera on display constitute general terms and conditions of constitute general terms and conditions that have been effectively included in the contract under private law and are subject to a review of their content. content. The plaintiff can claim damages for breach of contract from the defendant pursuant to § 280 para. breach of contract by the defendant pursuant to § 280 para. 1, § 249 para. 1 BGB that the defendant from making the photographs publicly accessible by uploading them on the internet. the internet. This behaviour constitutes an equivalent and adequately causal damage that has a sufficient internal connection with the breach of contract. with the breach of contract.

Lower courts:

Stuttgart Regional Court - Judgment of 27 September 2016 - 17 O 690/15

Stuttgart Higher Regional Court - Judgment of 31 May 2017 - 4 U 204/16

Source: Press release of the Federal Supreme Court of 22.12.2018

GoldbergUllrich Attorneys at Law 2018