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Street photography

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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