On 20 December 2018, the German Federal Court of Justice confirmed that photographs of public domain paintings ‎are, in principle, protected by a copyright-related right in section 72 of the German Copyright Act (Case No. I ZR 104/17). The case involved a request to take down several pictures hosted on Wikimedia Commons—an online database of works distributed under Creative Commons licenses—as public domain images. All pictures featured art on display at the Reiss Engelhorn Museum in Mannheim, Germany.

Wikimedia Germany responded to the judgment by saying that the country’s cultural heritage no longer belonged to the public and demanded that the German legislature change the law.

Facts of the Case

In late 2015, the museum filed a lawsuit in the Regional Court of Stuttgart against a longtime Wikipedia contributor. The suit concerned copyright claims related to 17 photographs of art on display at the museum. The photographs were commissioned by the museum in 1992, and scans of those photographs (taken from museum publications) were later uploaded by the respondent to Wikimedia Commons. The works of art in the photographs at issue are all in the public domain. For example, a famous portrait of composer Richard Wagner was painted in 1862. Thus, its copyright term ran out long ago.

On 3 August 2016, the Regional Court of Stuttgart found that the photographs in question were protected by a copyright-related right and ordered the respondent to desist from making the pictures available to the public. The first and second appellate courts, the Higher Regional Court of Stuttgart and the German Federal Court of Justice, respectively, in large part affirmed the ruling of the Regional Court of Stuttgart.

Key Legal Considerations

In Germany, the protection granted to photographs is not limited to copyright (“photographic works,” section 2, para. 1, No. 5 of the German Copyright Act). Photographs can also be protected under a so-called copyright-related right in section 72 of the German Copyright Act that requires no creativity on the photographer’s part but a minimum level of “personal intellectual effort.” But the scope of protection conferred is essentially equivalent to copyright, albeit with a shorter term.

The protection under section 72 of the German Copyright Act does not apply to mere scans and other simple photomechanical reproductions. The German Federal Court of Justice found that the photographs in question in this case are protected by section 72 because—to faithfully reproduce works of art—requires difficult technical preconditions such as, inter alia, light, distance, angle and focus and, therefore, these photographs qualified as “personal intellectual effort.”