Image copyright (Germany)
Encyclopedia
In Germany
, photo rights or "Bildrechte" are the copyright
s 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"). 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.
law eliminated the concept of "historical photos" on 1 July 1995.
depends on the type of material.
(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 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 digitization. Photographing two-dimensional templates in itself does not constitute an "artistic work", but sound and specialist methods used to do so does. A protective period due to § 72 UrhG for up to 50 years after the first publishing was issued.
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 photographs of paintings were 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.
If a raw photograph 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.
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
.
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, photo rights or "Bildrechte" are the copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s that are attached to the "author" of the photograph
Photograph
A photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
and are specified in the "Law for Copyright and similar Protection" ("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
Museum
A museum is an institution that cares for a collection of artifacts and other objects of scientific, artistic, cultural, or historical importance and makes them available for public viewing through exhibits that may be permanent or temporary. Most large museums are located in major cities...
or gallery owns a work of art
Art
Art is the product or process of deliberately arranging items in a way that influences and affects one or more of the senses, emotions, and intellect....
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.
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 UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
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 domainPublic domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
depends on the type of material.
Two-dimensional originals
It is generally agreed that a mechanical copy (e.g. photocopy), digitizingDigitizing
Digitizing or digitization is the representation of an object, image, sound, document or a signal by a discrete set of its points or samples. The result is called digital representation or, more specifically, a digital image, for the object, and digital form, for the signal...
(e.g. with an scanner
Image scanner
In computing, an image scanner—often abbreviated to just scanner—is a device that optically scans images, printed text, handwriting, or an object, and converts it to a digital image. Common examples found in offices are variations of the desktop scanner where the document is placed on a glass...
) 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 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
Joseph Beuys
Joseph Beuys was a German performance artist, sculptor, installation artist, graphic artist, art theorist and pedagogue of art.His extensive work is grounded in concepts of humanism, social philosophy and anthroposophy; it culminates in his "extended definition of art" and the idea of social...
were not to be used as template for digitization. Photographing two-dimensional templates in itself does not constitute an "artistic work", but sound and specialist methods used to do so does. A protective period due to § 72 UrhG for up to 50 years after the first publishing was issued.
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
Federal Court of Justice of Germany
The Federal Court of Justice of Germany in Karlsruhe is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and private law...
, judgement from 8 November 1989 - I ZR 14/88, GRUR
Gewerblicher Rechtsschutz und Urheberrecht
Gewerblicher Rechtsschutz und Urheberrecht is a monthly intellectual property law journal published in German. It is the journal of the German Association for the Protection of Intellectual Property and was established in 1899. The journal articles mainly concern German law...
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 photographs of paintings were 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.
If a raw photograph 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 must 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
Interpol
Interpol, whose full name is the International Criminal Police Organization – INTERPOL, is an organization facilitating international police cooperation...
.