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The Higher Regional Court of Hamm has upheld a ruling by the Regional Court of Bochum that aerial photographs taken by drones are not covered by the freedom of panorama under Section 59 UrhG. At the same time, however, the OLG also allowed an appeal to the BGH for a final clarification of the issue.

OLG Hamm, judgement of 27 April 2023 – 4 U 247/21

The defendant is a book publisher. It had published books containing aerial photographs of copyright-protected installations taken by means of drones. The plaintiff, Verwertungsgesellschaft Bild-Kunst, represents the artists of the depicted installations, some of whom are already deceased, on the basis of rights management agreements and had sued the book publisher for injunctive relief, damages and reimbursement of legal fees at first instance before the Regional Court of Bochum and won.

The plaintiff now defended the claims awarded to it by the Bochum Regional Court before the Hamm Higher Regional Court in the appeal proceedings. The defendant could not rely on the freedom of panorama, as the lower court had also ruled, but had infringed the artists’ copyrights to their installations.

The Higher Regional Court (OLG) of Hamm now upheld the decision of the Regional Court of Bochum. Only the claim for payment was revised by the OLG.

In particular, the reproduction and distribution of the installations in the books under §§ 16, 17 UrhG was not covered by the freedom of panorama under § 59 para. 1 sentence 1 UrhG. According to Section 59 (1) sentence 1 UrhG, works that are permanently located on public ways, streets or squares may be reproduced, disseminated and publicly reproduced by means of a photograph. According to this restriction, economic exploitation is then also permitted without the consent of the author. A work is “on” public ways, streets or places if it can be perceived from public ways, streets or places.

In an earlier “drone case”, the LG Frankfurt am Main had still assumed in its judgment of 25.11.2020 – 2-06 O 136/20 that, according to an interpretation in conformity with the Directive on the basis of Art. 5 (3) h) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright law, a work of art is permissible without the consent of the author. May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter: “InfoSoc Directive”), that aerial photographs were covered by Section 59 (1) UrhG and that even the use of auxiliary means did not lead out of the protection barrier.

The OLG now rejected this view, referring to the decision of the BGH – “AIDA-Kussmundjudgment of 27 April 2017 – I ZR 247/15, in which the BGH held that the purpose of the provision did not cover photographs of the work that were taken using special aids(such as a ladder) or after the removal of view-protecting devices (such as a hedge). Such views of the work were not part of the street scene perceived by the general public.

The perspective of a drone from the airspace was therefore not a perspective “of public ways, streets or places”. From the outset, the limitation provision in Section 59 (1) sentence 1 UrhG only concerned those perspectives that were available to the eyes of a person from generally accessible places.