OGH Rules on Photograph Copyrights

Jul 12, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently ruled on whether ‘simple’ photographs also benefit from copyright law.

The plaintiff was the author of an article for a commemorative publication, in which he had included a photograph of one of his postcards. In the year 2021, the defendant asked the plaintiff for permission to publish a black and white reproduction of the photograph in a book to be published by the defendant. Despite the plaintiff’s refusal to grant permission, the defendant published the photograph a year later.

The plaintiff sought an injunction, claiming that his intellectual property rights as the creator of the photograph had been infringed.

The claim was dismissed by the lower courts. The OGH now ruled as follows:

A ‘simple photograph’ within the meaning of Section 73 of the Austrian Copyright Law (Urheberrechtsgesetz, hereinafter UrhG) is to be distinguished from a ‘photographic work’ within the meaning of Section 3 UrhG. Only the author of a photographic work enjoys full copyright protection for an original intellectual creation, since the uniqueness resulting from the personality of the artist and a certain degree of uniqueness are the decisive factors here.

Producers of simple photographs enjoy ancillary copyrights. Photographs, as defined in Section 73 UrhG, are a broad subject matter. Therefore, pictures taken with a digital camera or a mobile phone can also be protected as photographs.

Where there is no creative act by a person, but also when the photography is simply a copy, there is no ‘act of photographing’ that would lead to protection of a performance, so that the creator cannot rely on Section 74 UrhG, as no photograph was ‘taken’.

However, the plaintiff had created a reproduction by means of photography. This is the case when existing objects or works of art are reproduced as faithfully as possible. The plaintiff’s photo was not to be classified as an original photographic work, but as a ‘simple photograph’. The injunction was therefore granted.

OGH 4 Ob 52/24m (4 April 2024)