The Fifth Civil Senate of the Federal Court of Justice, which is responsible, among other things, for land law, has ruled that the Prussian Palaces and Gardens Foundation may prohibit the unauthorised production and exploitation of photographs and film footage of the buildings and gardens it manages for commercial purposes if it is the owner and the footage was taken from its property.
The applicant, the Stiftung Preußische Schlösser und Gärten (Prussian Palaces and Gardens Foundation), which was established by state treaty between the Länder of Berlin and Brandenburg, has the task of preserving the cultural assets handed over to it, taking into account historical, art-historical, garden-historical and monument-preservation concerns, and making them accessible to the public. It manages over 150 historic buildings and around 800 hectares of gardens in Berlin and Brandenburg, including Sanssouci, Cecilienhof, Rheinsberg Park and Palace, Charlottenburg Palace, Grunewald Hunting Lodge and Peacock Island. Most of these buildings and gardens have been included in the UNESCO World Heritage List and are among the most popular tourist destinations in Germany. The plaintiff is defending itself against the fact that photographs and film recordings of the cultural assets it manages are being made and marketed for commercial purposes without its permission - which was not granted in this case. In three proceedings, she is demanding that the defendants refrain from such marketing, that they provide her with information about the number of photo and film shoots and the income they generate, and that the defendants be ordered to compensate the plaintiff for the damage she has suffered.
One of the three defendants (V ZR 45/10) is a photo agency that markets partly its own photos and partly those of others. The defendant in the second case (V ZR 46/10) unauthorisedly processed film footage of buildings and gardens on the Foundation's properties into a DVD about Potsdam, which he distributes commercially. The defendant in the third case (V ZR 44/10), as a service provider, operates an internet platform on which commercial and freelance photographers can place photos on the internet for download against payment. It stored approximately 4 million images on the image portal, including about 1,000 photos of cultural assets that the plaintiff manages, such as parks, sculptures, exterior and interior views of historical buildings.
The Regional Court granted the claims, the Higher Regional Court dismissed them. The right of ownership was limited to the protection of the material substance and its exploitation. The photocopying of the object and the exploitation of photocopies did not constitute an encroachment on the property right. Rather, the right of exploitation was vested in the author of the photocopy. The Senate did not follow this opinion.
It answered the first basic question of all three proceedings in the affirmative, namely whether the plaintiff, as the owner of the property, may make the production and exploitation of photographs or films of the cultural assets under its management for commercial purposes dependent on its consent, which is linked to a fee. In doing so, it follows the case law of the First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for copyright law. This is represented by two decisions which have become known as "Schloss Tegel" (I ZR 99/73) and "Friesenhaus" (I ZR 54/87). According to these decisions, the owner cannot prohibit the production and exploitation of photographs if they were taken from outside his property. However, he can prohibit them if they were taken from his property. This is a consequence of the right of ownership. The owner can determine whether and, if so, under what conditions someone enters his property. He has the exclusive right to take and use photographs taken from his property.
The Senate answers the second basic question in the negative, namely whether the plaintiff as a foundation under public law (unlike a private person) must make the buildings and parks accessible to interested parties free of charge for commercial purposes, taking into account the provisions on its tasks. The state treaty describes the tasks of the foundation as being to preserve the cultural assets handed over to it, to maintain them taking into account historical, art historical and garden historical and monument preservation concerns, to supplement their inventory and to make them accessible to the public. The statutes, which regulate the details, do indeed state that the gardens and parks are to be guaranteed as recreational areas and that no admission fee is charged. However, it also follows that this obligation only applies insofar as the preservation and maintenance of the cultural heritage, which in case of doubt must be given priority, allow it. Furthermore, the freedom from charges does not apply to photography and filming for commercial purposes. Rather, the plaintiff is authorised to charge fees for this.
Accordingly, the case in the proceedings V ZR 45/10 had to be referred back to the Court of Appeal. The further preconditions of the plaintiff's claims, in particular whether it is the owner of the properties it manages, still need to be clarified. This was different in the proceedings V ZR 46/10. Here, the plaintiff's ownership was established. Therefore, the claim for injunctive relief and the claim for information are given. In this respect, a final decision could be made. With regard to the claim for damages, however, further findings on fault are still necessary.
In the proceedings V ZR 44/10, the special feature was that the defendant itself had not taken any photographs or films of the plaintiff's buildings and gardens and did not exploit them itself, but only provided a virtual marketplace for independent exploitation by photographers and photo agencies. Here, too, the Senate follows the case law of the I Civil Senate, which has become known through decisions with the catchwords "Internet I to III" (I ZR 304/01, I ZR 35/04 and I ZR 73/05), "media harmful to minors on ebay" ( I ZR 18/04) and "Summer of our lives" ( I ZR 121/08). Accordingly, the operator of a virtual marketplace only has to check the photos offered there if he can recognise an infringement of intellectual property rights and property rights or other violations of rights. This is not the case here, because the pictures of the plaintiff's buildings and gardens do not show whether they were taken without permission or not.
Judgments of the Federal Supreme Court of 17 December 2010 - V ZR 44/10, V ZR 45/10 and V ZR 46/10
Previous instances of the decision V ZR 44/10:
Potsdam Regional Court - 1 O 175/08 - Decision dated November 21, 2008
OLG Brandenburg - 5 U 12/09 - Decision dated February 18, 2010
and
Previous instances of the decision V ZR 45/10:
Potsdam Regional Court - 1 O 161/08 - Decision dated November 21, 2008
OLG Brandenburg - 5 U 13/09 - Decision dated February 18, 2010
and
Previous instances of the decision V ZR 46/10:
Potsdam Regional Court - 1 O 330/08 - Decision dated November 21, 2008
OLG Brandenburg - 5 U 14/09 - Decision dated February 18, 2010
Source: Press release of the BGH
Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
