Photography Law - horak Lawyers Hannover/ Munich

Photography law involves copyright, personality and image rights, and data protection. Taking, acquiring and publishing images each raises distinct legal questions for photographers, subjects, agencies and users.

A photograph may be protected as an original photographic work under section 2 UrhG or as a photograph under section 72. The label “snapshot” alone does not determine originality. Section 68 excludes related-right protection for reproductions of public-domain visual works.

The distinction has practical consequences, including different terms of protection: generally 70 years after the author’s death for a work, compared with the rules in section 72(3) for photographs.

Photo Procurement Law

A clear distinction between the production of a photography and its acquisition is fundamental:

When taking photographs, assess both subject and circumstances. Even an image of objects may affect privacy or data protection if it reveals information about an identifiable person or private life.

• Photo/Portraits: All those general rights of personality related to an affected person must be considered at the time of the production of a photography.
• Taking an identifiable person’s photograph may itself affect personality and data-protection rights, independently of publication. Purpose, location, circumstances and competing legitimate interests require assessment.
• Once distributed online, an image may be difficult to remove completely. Consent can justify taking or publishing an image but is not the only possible legal basis. Sections 22 and 23 KUG concern distribution and public display, alongside applicable data-protection rules. Public visibility alone does not create unrestricted permission to photograph or publish.

The jurisdiction of the general rights of privacy has enhanced in particular “spheres”.

• Public sphere: A public location does not remove personality or data-protection rights. Purpose, context and intended use remain relevant.
• Social sphere: Professional and social situations require assessment of the occasion, information interest and interference. There is no universal permission or prohibition.
• Private sphere: Images concerning the home, family and comparable private situations generally attract strong protection. Consent and other possible legal grounds must be carefully assessed.
• Intimate sphere: Highly personal matters receive particularly strong protection. Unauthorised intimate recordings may be criminal. Celebrity status does not create a general exception, while valid consent and the precise circumstances remain relevant.

Nevertheless, the §201a StGB of the German Law (introduced in 2004) is as fundamental as the jurisdiction of the general rights of privacy:

Damage of the personal sphere of an individual through the acquisition of an image.

Section 201a StGB provides for imprisonment of up to two years or a fine. Its offences include certain unauthorised recordings in a home or a specially protected space that violate the highly personal sphere, depictions of helplessness and grossly offensive depictions of deceased persons. The exact statutory conditions must be met.

Certain uses or disclosures of such recordings are also punishable under section 201a. Not every use of every image falls within the provision.

Section 201a also addresses specified disclosures of lawfully produced recordings, unauthorised sharing of images apt to seriously harm reputation, and certain paid transactions involving nude images of persons under 18. The statutory elements and exceptions must be assessed separately.

Under section 201a(5), image media, recording devices and other technical means used by an offender or participant may be confiscated; confiscation is not automatic. Section 74a applies.

Under section 201a(1), no. 1, location alone does not establish criminal liability. A recording must in particular be unauthorised and violate the highly personal sphere. Images taken in offices, gardens or hospital rooms require assessment of the actual statutory elements.

Press, artistic and scientific freedoms may be relevant. The exception in section 201a(4) applies only to the specified offences and where overriding legitimate interests exist. It is neither confined solely to press photographs nor a blanket exemption for all press activity.

Pictures of Animals and Objects

Section 59 UrhG permits specified uses of protected works permanently located at public roads, streets or squares. For buildings it covers only the exterior. It is not a universal permission to photograph every object or animal; other rights and the viewpoint remain relevant.

§59 Werke an öffentlichen Plätzen (Panoramafreiheit)

Works in public places (freedom of panorama)

Section 59 permits reproducing, distributing and publicly communicating eligible permanently situated works by painting, drawing, photograph or film. For buildings, the permission is confined to the external view.

Under section 59(2), the reproductions may not be made on a building; this does not mean that all photographs of buildings are prohibited.

Freedom of panorama generally concerns views available from public space. In its judgment of 23 October 2024, I ZR 67/23, the Federal Court of Justice excluded drone photographs from this exception. On private property, access and use may be restricted by property, house and contractual rights. Land ownership does not automatically confer copyright in every photograph taken there.

At concerts, sports and other events, distinguish house rules, ticket terms, personality rights, copyright and related rights. An organiser does not automatically own every photographer’s rights. Permission depends on the relevant rights and agreements; a public social-media post is not private merely because it is unpaid.

Acquisition of Photographs:

Images and licences may be acquired from photographers, agencies, archives or other authorised parties. Record permitted media, purpose, term, territory, exclusivity, editing rights and fees. Written documentation is useful evidence; any statutory form requirement must also be checked. Editing rights are not automatically included in every photo licence.

Sale of Photographs

The photographer generally retains copyright while granting rights of use. Broad or exclusive rights should be clearly defined and appropriately remunerated. The scope of unspecified uses is governed by the contractual purpose under section 31(5) UrhG. Applicable remuneration, warranty and liability rules must be assessed.

Publication of Photographs

Publishing a photograph may affect the subject’s rights, rights in depicted works and the photographer’s or licensee’s rights. Simple photographs may receive section 72 protection, subject to its term and exceptions such as section 68. Infringement may support injunctions, information claims and, where the statutory conditions are met, damages or other remedies. A warning letter may precede litigation. Clearance of the necessary rights helps prevent disputes; liability and amounts are case-specific.

Following an extract from the Copyright Law (English version):

§15 Generals

The author has the exclusive right to utilize his work in physical form; the law comprises:

1.

 Rights of reproduction (§16)

2.

 Rights of Distribution (§17)

3.

 Rights of Exhibition (§18)

(2) The author also has the exclusive right to communicate the work to the public in non-physical form. This includes in particular:

1.

Right of performance, production and presentation (§19)

2.

Right of making a work publicly available (§19a)

3.

Broadcasting rights (§20)

4.

Right of reproduction with images or audio-carriers (§21)

5.

Right of reproduction on radio broadcasting (§22)

A communication is public when intended for a plurality of members of the public. Persons who have personal connections with the person using the work or with the other recipients are distinguished from the public; a majority of the population is not required.

§16 Rights of Reproduction

 (1) Rights of reproductions authorize the duplication of a work, in an unrestricted amount of reproductions, temporarily or permanently, using any method.

 (2) Rights of reproduction also regards the transfer of the work (such as images or sound carriers) to devices for reproducible playback, whether it concerns the recording of a reproduction of the work of an image or sound carrier, or the transmission of the work from one image or sound carrier to another.

§17 Rights of Distribution

 (1) Rights of distribution authorize to publicly present or place on the market an original or a reproduction of a work.

(2) If the original or duplicated pieces of a work have been placed on the European market (in Europe or in State party to the Agreement on the European Economic Area), with a regular consent of distribution, a further spreading of the above-mentioned work (with the exception of a possible leasing activity) shall be permitted.

(3) Rental means temporary transfer of use for a direct or indirect commercial advantage. The following transfers of originals or copies are not treated as rental:

1.

of buildings or works of applied art; or

2.

within an employment or service relationship solely for fulfilling obligations arising from that relationship.

§18 Rights of Exhibition

Rights to exhibition regulate the public display of original or reproductions of an unpublished work of art or an unpublished photograph.

§19 Performance, Production and Presentation Rights

 (1) Performance rights regard the law that concerns the public personal performance of a linguistic work.

The right of performance includes making a musical work heard through personal performance and presenting a work on stage to the public.

(3) The right of performance and production concerns the right to publicly make lectures and performances outside the room, in which the personal performance takes place, by means of a screen, loudspeakers or similar technical equipment.

(4) Presentation rights regard the public appearance of works of visual arts, photographs, films or representations of scientific or technical nature by means of technical equipment. The right presentation does not include the right to broadcast or similar.  (§22)

§19a Right to make a work publicly accessible

The making-available right covers access to a work by wire or wireless means so that members of the public may access it from a place and at a time individually chosen by them.

§20 Broadcasting rights

The right to broadcast is the right that make a work accessible to the public by radio, satellite broadcasting, television broadcasting, cable radio or similar technical means.

§ 20a European Satellite Broadcasts

If a satellite transmission is carried out within the territory of a Member State of the European Union or Contracting Party to the Agreement on the European Economic Area, it shall be deemed exclusively in that Member State or Contracting Member State.

Where a satellite broadcast is made in a state outside the EU and EEA that does not provide the required level of protection under the Satellite and Cable Directive, section 20a(2) locates the broadcast in the relevant Member State or contracting state determined by:

1.

In which the ground station is located, and from this station the programmed signal are directed to the satellite, or

2.

the broadcaster’s establishment, if the uplink-station condition is not met. The right is asserted against the uplink operator in the first case and against the broadcaster in the second.

Satellite transmissions referred to para. 1 and 2 are the inputs under the control and responsibility of the broadcasting company, for a public reception of particular program-carrying signals in a continuous transmission chain, that runs from satellite to earth and vice versa.

§20b Retransmission

Section 20b – summary: Simultaneous, unaltered and complete retransmission is generally subject to collective rights management. Exceptions include works broadcast exclusively online and rights exercised by broadcasters in their own transmissions. Retransmission over an internet access service is subject to the statutory secure-environment and authorised-user requirements.

Even where retransmission rights have been granted to a broadcaster or a phonogram or film producer, section 20b(2) provides a claim to equitable remuneration against the retransmission service. The claim cannot be waived; advance assignment and enforcement are restricted to collecting societies, subject to the statutory provisions on collective agreements and remuneration rules.

§21 Right of reproduction through images or sound carriers

Section 21 concerns making recitations or performances publicly perceptible by means of video or audio recordings. Section 19(3) applies correspondingly.

§22 Right of reproduction of broadcasts and public accessible sources

The right of reproduction on broadcasts and public accessible sources is the right that allow to make radio transmissions publicly accessible reproductions of the work by means of a screen, loudspeaker or similar technical equipment. Clause §19 paragraph 3 shall be accordingly applied.

§23 Adaptations and redesigns

Section 23 – summary: Publication or exploitation of adaptations, including melodies, generally requires consent. A new work maintaining sufficient distance is not an adaptation within this rule. For film adaptations, execution of specified plans or designs, replication of architectural works and database adaptations, production itself requires consent. Paragraph 3 excludes specified purely technical changes.

§24 Free Use (repealed)

Former section 24 on free use has been repealed. Current assessment includes sufficient distance under section 23(1) and statutory exceptions, including section 51a for caricature, parody and pastiche.

Musical borrowings must also be assessed under current law. The former melody rule in section 24(2) is no longer in force. Section 23 expressly addresses melodies; any permitted use requires the relevant statutory conditions.

Subsection 4

Other rights of the author

§25 Access to the Work

The author may request from the owner of the original or the owner of a duplication piece, to make the original (or the copy) accessible to him, as far as this is necessary for the production of duplicates or adaptations of the work and does not conflict with the legitimate interests of the owner.

The owner is not obliged to give the original or the reproduction copy to the author.

§26 Artist’s resale right

If the original of a work of visual arts or a work of photography is resold and if an art dealer or auctioneer is involved as a purchaser, transferor or intermediary, the transferor shall pay the author a share of the sale proceeds. The selling price in the sense of paragraph 1 shall be considered without taxes. If the transferor is a private individual, the purchaser or trader involved in the transaction as an acquirer or intermediary, is liable as joint and several debtors; in relation to each other, the seller is the only one that is committed. The obligation shall be dropped (according to para. 1) if the disposal proceeds amount to less than 400 Euro.

(2) The amount of the share of the sale proceedings is:

1.

4 percent for the portion of the sale proceeds of up to EUR 50,000,

2.

3 percent for the portion of the sale proceeds of EUR 50,000.01 to EUR 200,000,

3.

1 percent for the portion of the sale proceeds of 200,000.01 to 350,000 euros,

4.

0.5 percent for the portion of the sale proceeds of 350,000.01 to 500,000 euros,

5.

0.25 percent for the portion of the sale proceeds of more than 500,000 euros.

The total amount of subsequent remuneration for resale could reach up to EUR 12,500.

The artist’s resale right is inalienable, and the author cannot waive the entitlement to the share in advance.

The author can request information from an art dealer or an auctioneer, about the original of a work of the author; this can ask if in the last 3 years from the request of information, it has been sold with the involvement of an art dealer or an auctioneer.

on the name and the address of the seller and the amount of the sale proceeds, in order to enforce his claim against the transferor, the art dealer or auctioneer shall have the right to refuse to provide information or the name and address of the seller, if he also pays the share.

Claims under paragraphs 4 and 5 may only be asserted by a collecting society.

If there are reasonable doubts on any information pursuant to paragraph 4 or 5, the collecting society may require that the auditor or a certified general accountant has access to the business and accounting documents, as it is necessary to establish the correctness or completeness of the information. If the information is found to be incorrect or incomplete, the providers must reimburse the costs of the examination.

The above-mentioned regulations are not applied on works of architecture or applied arts.