Freedom of panorama

The so-called ‘freedom of panorama’ in photography law is the subject of numerous discussions among photographers and lawyers alike. Regulated in Section 59 of the German Copyright Act (UrhG), it restricts the rights of architects and artists to their buildings and other works in favor of photography.

In principle, every artist has the exclusive right to decide for themselves whether their work (houses, statues, sculptures, etc.) may be depicted by other people. Freedom of panorama makes a legal exception to this.

Lasting work

The law stipulates that the object to be depicted must be a “permanent work”. However, the law does not specify when a work is ‘permanent’.

A prominent decision comes from the Federal Court of Justice (BGH) on the wrapping of the Reichstag by the artists Christo and Jean-Claude (BGH, judgment of January 24, 2002, ref.: I ZR 102/99 – Verhüllter Reichstag). According to this ruling, a work is not permanent at least if it is not intended by the artist to remain in the world for more than two weeks.

Freedom of panorama is also called freedom of street view

Pictures must be taken “from the street”. They should make it possible to reproduce the view from the public street or public square. The use of aids such as ladders or tripods is not permitted. The BGH also rejected the freedom of panorama for a photo taken from an upper floor (BGH, judgment of 05.06.2003, ref.: I ZR 192/00 – Hundertwasser-Haus).

Exterior view

Finally, the law only provides for the depiction of the external view of buildings. This serves to protect the privacy of residents. Accordingly, photography inside buildings, backyards and gardens is not permitted, with a few exceptions. It does not matter whether this is done with or without aids.

Property right

In photography law, the principle of “no right to the image of one’s own property” applies. This rule states that no one can prohibit their property from being photographed. In principle, there is nothing to stop you from photographing someone else’s property. As animals are also legally regarded as property, the neighbor’s dog may also be photographed.

Exceptions to this are to be made if, in exceptional cases, third-party personal rights or trademark rights are infringed.

My house, my garden, my car

Irrespective of the freedom of panorama, as a photographer you are subject to certain constraints as soon as you enter other people’s property or buildings. Whether pictures may be taken from there is regularly determined by the relevant domiciliary rights.

The right of domicile gives the owner the right, as a rule, to freely decide who he allows access to and who he denies access to. He can prohibit other people from taking photographs on his premises or in his house. Common examples of the application of domiciliary rights are zoos, concerts and museums.

There are regularly signs indicating that photography is prohibited. The exercise of domiciliary rights is often also transferred to the actual users of a building, e.g. the concert organizer.

Special feature: Claim of the property owner

A well-known judgment concerns the commercial use of photographs of publicly accessible gardens, which (only) the property owner may prohibit (BGH, judgment of 01.03.2013, ref.: V ZR 14/12 – Preußische Schlösser und Gärten). It was not just about the pure recordings but the claim to prohibit commercial exploitation. This claim does not follow from the domiciliary right but from the right of ownership of the property.

The owner is impaired in his property by the exploitation of photographs of his property taken without his permission within the property and may prohibit the exploitation of such photographs.

However, this does not grant the property owner an independent right to the image of their own property. Rather, the legal consequence is due to the nature of the impairment that the property undergoes in the event of unauthorized use of photographs.

Questions beforehand – less hassle afterwards

Even if the legislator provides for exceptions in favor of photography in the law, the courts consistently interpret these strictly. At least for pictures taken on private property, it is ultimately the photographer’s responsibility to obtain permission in advance from the owner of the premises or property. This extra effort pays off at the end of the day if an expensive dispute can be avoided.