A recent Federal Court of Justice case tested the boundaries of the “freedom of panorama” (in German, Panoramafreiheit) which permits the reproduction, distribution and publication of works protected by copyright that are located permanently in public ways and open spaces. According to the Federal Court of Justice, the freedom of panorama also applies to works of art that are not “fixed in place”, such as those on ships or cars.
In the case before the Federal Court of Justice, the claimant, a cruise operator known for the famous AIDA kissing lips which adorn its cruise ships, challenged a regional court decision declining to order a travel website to remove a photo of claimants distinctive ship from its site. The claimant argued that it holds exclusive rights of use of the kissing lips and is permitted to prohibit use by third parties.
Claimant unsuccessfully appealed the regional court’s rejection of the claim and now the Federal Court of Justice has also denied the claimant's appeal to the highest court.
Federal Court of Justice: Kissing lips on the cruise ship are “permanent” under § 59 of the Act on Copyright and Related Rights
Under § 59 of the Act on Copyright and Related Rights, the freedom of panorama applies only to works located permanently at public places. “Permanently” means they remain at a place for the duration of their existence. This rule is straightforward for architectural works; photos of the Elbe Philharmonic Hall (Elbphilharmonie) or the television tower (Fernsehturm) in Berlin may thus, generally, be reproduced and published without the consent of the copyright holders. But what about copyrighted works on a moving ship?
According to the court, a work is located in public ways and open spaces if it can be seen from places that are under the open sky and freely accessible by the public. This is true, even if a work is not “fixed in place” and moves amongst different public places, one after another. A work is permanently located at such places if it is intended, from the perspective of the public, to be there for a long period of time.
The claimant’s ships are deployed for a long period of time at sea, on coastal waters, marine waterways and in seaports and can be seen from places that are freely accessible to the public. It is insignificant, according to the court, that the “AIDA kissing lips” are sometimes at places that are not publicly accessible – in a shipyard, for example. Artists who create works for such purposes must simply accept that their works are photographed without their consent at public places.
Conclusion: Freedom of panorama applies also to works on means of transportation – with a few general exceptions
The ruling is significant also for cars, trams and aircraft adorned with art. However, there are a few limits to the freedom of panorama that have practical importance. For example, the individual copyrighted works must be freely visible from publicly accessible (street-level) property. This does not include works that can be seen only with aids or from a different height (ladder, fence or the perspective from the roof of a building).
The same applies to photographs taken from private property that were made by infringing the exclusive right of the property owner (Federal Court of Justice GRUR 2011, 323 – Preußische Schloss- und Parkanlagen; Federal Court of Justice GRUR 1990, 390 – Friesenhaus).