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RESTRICTIONS ON THE USE OF PICTURES FEATURING BUILDINGS

EMPRESS MARIA THERESA AND FREDERICK THE GREAT WERE CONTEMPORARIES AND RIVALS ON THE BATTLEFIELD. WHAT UNITES THEM ARE THEIR CASTLES: THE EMPRESS RENOVATED AND EXPANDED SCHÖNBRUNN PALACE, WHILE THE KING OF PRUSSIA HAD SANSSOUCI PALACE BUILT IN POTSDAM. TODAY, BOTH CASTLES ARE LISTED AS A UNESCO WORLD HERITAGE SITE. AND YET AUSTRIA AND GERMANY HAVE DIFFERING RULINGS WHEN IT COMES TO PHOTOGRAPHING THE BUILDINGS.

Let’s start with Schönbrunn Palace: a credit card company photographed the palace and gloriette, then used them for an advertisement. Now, Austria just happens to be the owner of the whole Schönbrunn grounds and building. The country (via a wholly owned daughter cpmpany) therefore applied for an injunction against the use of the pictures by taking the credit card company to court. The country spends millions every year to maintain the castle and advertise it, thus contributing to the palace’s good name and fame. Therefore, Austria must give its consent if other parties want to use the pictures for commercial ends.

The Austrian Supreme Court didn’t agree, and allowed the credit card company to use the pictures it took for advertising1

The German Supreme Court, however, had another opinion (BGH)2: the Stiftung Preußischer Kulturbesitz, a public trust of the Länder Berlin and Brandenburg, took legal action against an agency that had used pictures shot independently of Sanssouci Palace and its park for commercial gains. The court ruled that such a behaviour was unlawful. Both decisions relate to the year 2013. So why do they differ? Pictures can never be used without the consent of the photographer, unless he or she has been dead for more than 70 years. The same applies to the pictures of buildings. Conversely, if you yourself photograph buildings, what we have is a case of ‘free exploitation’. Indeed, in Austria, buildings (but also sculptures) located on open, public spaces can be photographed and such photographs can be disseminated. Pictures of venues that aren’t protected by copyright (namely those whose architect passed away more than 70 years ago) allow for the free use of said pictures even if we weren’t to consider the ’free exploitation’.

Buildings located on open spaces can be photographed, and those pictures can then be used. Why did the German Court prohibit the use of the Sanssouci Palace pictures?

Copyright is not the only element at play here, because ownership also plays a role. The owner of an object, including a building, can determine what happens to said object. The Stiftung Preußischer Kulturbesitz trust is the owner of Sanssouci Palace and can determine who accesses the grounds and to what extent. The trust grants access only under the condition that the commercial use of pictures taken on the grounds require the trust approval. The court interpreted the use of the pictures by the agency as an encroachment upon the ownership rights and the legal terms and conditions of the trust, as they were taken on the grounds of the trust.

The Austrian Court barely touched upon this issue. It determined that in Austria there is no claim to ownership of the grounds regarding pictures featuring buildings. What the ruling doesn’t clear up is if the ‘free exploitation’ can be limited as it’s not clear whether the pictures were taken on the grounds or outside. If the pictures were taken off the grounds, according to the ‘free exploitation’, owners of the subject cannot restrict the photographer’s rights anyway, not even in Germany.

Incidentally: the same problem affects pictures taken in museums or exhibitions. The regional court of Stuttgart3 and the regional court of Berlin4 had to deal with this issue fairly recently. Following the judicature to the Prussian castles, both courts denied the right to use said pictures if the museum prohibits taking pictures in its terms and conditions and indications.

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Dr. Georg Huber, LL.M. ist Partner der Innsbrucker Rechtsanwaltskanzlei Greiter Pegger Kofler & Partner. Er hat in Innsbruck und Chicago studiert und ist sowohl in Österreich als auch New York als Rechtsanwalt zugelassen. Zu seinen bevorzugten Tätigkeitsgebieten zählen unter anderem IT- und IP-Recht, wobei er sich auch immer wieder mit urheberrechtlichen Fragen befasst.

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