GER: Federal Court on Copyrightability of Drone Footage

Nov 15, 2024 Benn-Ibler Rechtsanwälte

If aerial photographs of works protected by copyright are taken with the aid of drones, they do not fall within the scope of the freedom to take panoramic photographs. The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) confirmed that this infringes copyright law.

The action in the case at hand was brought by a collecting society which administers the rights and claims of visual artists. The defendant runs a book publishing company which publishes guides to slag heaps of the German Ruhr region. These include aerial photographs of various art installations, taken by drone. The creators of these installations have signed representation agreements with the plaintiff.

The plaintiff is of the opinion that the defendant’s publications infringe the copyrights of the installations because the aerial photographs are not covered by the freedom of panorama. Therefore, the plaintiff is suing the defendant for, among other things, injunctive relief and damages.

The BGH ruled as follows:

By reproducing the copyrighted artistic installations, the defendant has infringed the right of reproduction and distribution of the works to which the authors are entitled.

The reproduction and distribution of aerial photographs taken by a drone is not a permitted use of the works on display under copyright law.

The panoramic freedom provided for in copyright law is intended to exempt the use of works if and to the extent that they form part of the view of the street or landscape that can be perceived by the general public.

In this respect, a balance must be struck between the freedom of information and communication of the users of the work and the legitimate interest of authors to have a fair share in the commercial exploitation of their works.

In this case, the balance is in favour of authors.

Press Release No. 204/2024 on BGH I ZR 67/23 (23 October 2024)