Photography Law - horak Lawyers Hannover/ Munich/ Vienna
Photography Law is depicted as a result of copyright law, general rights of privacy and the right of people to their own likeness. The production, acquisition and the publication of a photography and its legal consequences are really important for the daily praxis of photographers, and for photo agencies.
Photos can have copyright rights (and a genuine right ‘protection). Photographic works are works of authorship and are the result of a personal intellectual creation to reach a high level of creativity and originality; this will be achieved with a detailed and tasteful choice of motif, for example. The bare snapshot is not considered a work of art, it is only a photo and can only be protected by ancillary copyright.
This theoretically important distinction is not so fundamental as a legal aspect, since in both cases, the same legal consequences are applied.
Photo Procurement Law
A clear distinction between the production of a photography and its acquisition is fundamental:
Production of a photography: in this field, it is important to differentiate the subject of a photo (people or objects). If the subject of a photo is an item, all the issues regarding the general right of personality cannot come into question.
- 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.
- It is wrong that only the dissemination and publication of personal photos violate the rights of a depicted person. The Federal Constitutional Court intends to do an „act on securement of data “, in order to avoid a subsequent spreading of photos or similar materials, since it is, nowadays, really easy to produce and distribute those data, with a simple cell phone, iPad or a photo camera.
- The depicted person, has no real control over the fact that his/her appearance can be made available to an unmanageable media audience. Once in internet, those spread photos can be removed -it is to consider that the chances are really low- just with a considerable expense and effort. It is possible to make portraits, only when the depicted person expressly agrees. Photos can be taken even without the consent of the depicted person, in accordance to the § 22 KUG; however, this is an exception that needs to be proven by the photographer. The picture in consideration, must be a reason of appreciation or consideration for the photographed person, and not an excuse for public disfavor or mocking.
The jurisdiction of the general rights of privacy has enhanced in particular “spheres”.
- Public sphere: general accessible publicity, shooting of photos categorically allowed.
- Social sphere: the social entourage of the depicted person; good consideration, photo-shooting categorically forbidden, but can be permitted as a result of an appreciation of values.
- Private sphere: the private domain of the photographed; good appreciation of values is necessary, photo-shooting generally forbidden, just in rare cases could be permitted.
- Personal sphere: the personal aspect of the photographed (feelings, health, sexual life, intimacy); photo-shooting are forbidden. Pictures of sick or naked public figured are absolutely not allowed.
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.
If an individual takes advantage of a situation of intimacy in a private apartment or a protected environment, and photographs a second person without permission, damaging the public and private image of the depicted person, this individual shall be fined or could even be liable to imprisonment for up to one year.
A person using a photography of an act described in paragraph 1, or makes it accessible to a third party is lso punishable by law.
If an individual takes advantage of a situation of intimacy in a private apartment or a protected environment, and photographs a second person without permission, and make it accessible to a third party with no authorization, damaging the public and private image of the depicted person, and violating their private sphere, this individual shall be fined or could even be liable to imprisonment for up to one year.
The „image carrier „or the „image recorder” (or other technological tools) that the offenders and the attendees utilized, need to be confiscated. §74a is applicable.
According to §201a para. 1 of the German Penal Code (StGB), the photographer is not allowed to violate the personal living sphere of a photographed person. This includes, for example, the unauthorized and stealthy acquisition of personal pictures of an individual, in his/her home, garden, hospital´s room, or in other business circumstances. All the above-mentioned cases are punishable by law. Offices or business facilities are also to consider as a part of the personal living sphere of an individual, and taking pictures in this commercial premises is also punishable by law.
The legislature also wanted to ban the typical “Paparazzi-Photos”, made by professional Paparazzi or by private Voyeurs. However, this regulation would have to be interpreted by means of the constitution, in particular in connection with the Freedom of Press in determining whether the law will violate the personal sphere of an individual or not. This is valid just for press photographs and similar, not for all other kinds of photographs.
Pictures of Animals and Objects
In accordance with the § 59 UrhG, in this case, the principle of Freedom of Panorama shall be applied. Taking pictures of general objects (such as buildings, vehicles or landscapes) and animals is allowed, if the photographed items are open to the public.
§59 Werke an öffentlichen Plätzen (Panoramafreiheit)
Working on public places (freedom of panorama)
Items, that are located on public places, streets or squares, aid with paintings or graphics, can be recorded with a photo-camera or video-camera; it is permissible to produce and multiply, distribute and publicly reproduce those recordings. The permission can be extended to the external sight of buildings.
Reproduction of buildings shall not be carried out.
Freely accessible places, such as marketplaces, streets or houses may be photographed. However, the extent of Freedom of Panorama, has been questioned several times, for instance, with the coming up of Google Street-view &Co. Thus, whatever is publicly visible, can be photographed. When recording from the point of view of an accessible private property, the landowner must provide an authorization. The landowner will keep the right of production and utilization of the photographs, that have been taken in his/her property.
The same regulation is applied to concerts, public or sport events. Quite apart from the personal photographs, the owner/organizer will be the only executive owner of the photography rights. Therefore, no photo may be made or utilized. Even the private use, for example, the publication of those pics on Facebook, is illegal.
Acquisition of Photographs:
Photographs can be purchased from photographers, photo agencies (such as gettyimages, photocase etc.), from photo´s archives or from photo-collecting societies. In case of acquisition of a photograph, a written contract is normally required, in order to finalize the purchase, authorize the use of the implied photo and to clarify all the possible concession issues connected with additional usage rights. In contrast to the more common practice, the written form is strongly recommended from the perspective of the acquirer; this latter will be in possession of a burden of evidence, necessary to prove its legal utilization-permission of a particular image.
Sale of Photographs
During the selling process of a photograph, some important aspects need to be taken into consideration (just as purchasing of a picture). It happens actually really often, that the photographer sells his/her pictures almost in full (keeping its author rights), with really extensive concession rights. Such comprehensive selling rights can be more expensive for the purchaser. If the number of utilization rights, that the acquirer wants to buy, enhance, the licensing fees will also be higher. It is also important to know, that there is a standard remuneration obligation for the granting of rights.
Publication of Photographs
In any publication of photographs is really easy to infringe the rights of the depicted person. Even the simplest photos (also called snapshots), are protected by the rights (ancillary copyright) of photographers. Apart from photographers, the rights of exploitation may also have been transferred to a third party, who may claim damage for failure, disclosure, destruction or compensation. Further substantive content of claims may be presented. Such a contention often begins with a cost-incurring written warning. An indemnity for using a single image could quickly reach an elevate amount of money, depending on the duration and extent of the exploitation, in accordance to the current emanated law regulation. This can only be avoided with an appropriate management of rights and a right ‘clearance, that could slightly enhance the costs of the process, that can be carried out far more objectively and favorably.
Following an extract from the Copyright Law (English version):
The author has the exclusive right to utilize his work in physical form; the law comprises:
Rights of reproduction (§16)
Rights of Distribution (§17)
Rights of Exhibition (§18)
(2) The author has also the exclusive right to publicly reproduce his work in physical form (Law on Public Reproduction). The law on public reproduction comprises:
Right of performance, production and presentation (§19)
Right of making smth. publicly available (§19a)
Broadcasting rights (§20)
Right of reproduction with images or audio-carriers (§21)
Right of reproduction on radio broadcasting (§22)
The reproduction is considered public when the majority of the public´s members has access to the work. To the public belongs anyone who is not connected with the person who exploits the work, or with other possibly connected people.
§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) Leasing, within the meaning of the provisions of this Act, shall be time-limited, in a direct or indirect cession of use. The cession of originals or duplicated pieces shall not be considered as a leasing.
from applied arts on building structures and works or service relationship
or in works or service relationships to the sole purpose, of fulfilment of obligation.
§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.
(2) Production rights regard the law that concerns public performances of works of music.
(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 smth. publicly accessible
It is possible to make a work publicly accessible -wireline or wireless- from every public accessible place.
§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.
If a satellite transmission is carried out in the territory of a State, which is neither a Member State of the European Union nor a Contracting State to the Agreement on the European Economic Area and in which the right of satellite broadcasting is so defined in Chapter II of Council Directive 93/83 / (EEC) No L 248/15), it has no right to be protected, as it is for the Member State or Contracting State,
In which the ground station is located, and from this station the programmed signal are directed to the satellite, or
In which the broadcaster is established if the condition laid down in para. 1 are not considered. In case number 1, the operators of the ground station will be responsible; in case number 2, the broadcasting company will take the responsibility.
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 Cable Retransmission
The right to resend a sent work within a program that is transmitted simultaneously and completely by means of cable systems or microwave systems (cable broadcasting or retransmission) can only be asserted by a collective society. This is not applicable for those rights, regarding a broadcasting company relating just to its broadcasts.
If the author grants the right of a broadcasting company or sound carrier or film producer, the cable company has nevertheless to pay an adequate remuneration for cable transmission to the author. A claim for remuneration can not be avoided. It may be ceded in advance to a collecting society and only be transferred by this latter. This provision does not preclude tariff agreements, bargaining agreements and joint remuneration rules for broadcasters, as the author grants appropriate remuneration for each cable re-transmission.
§21 Right of reproduction through images or sound carriers
The right of reproduction through images or sound carriers regards the presentation or performance of a work of art.
§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
Adaptation and redesign of a work, shall be published or utilized just with the legal permission of the author. An authorization is necessary also in case of a filming adaptation of the work, an implementation of plans and designs of a work of arts, in the reconstruction of a work of architecture, or in the processing or redesigning of a database work.
§24 Free Use
(1) An independent work, created freely using the work of others, may be published and utilized without the consent of the author of the work used.
(2) Paragraph 1 shall not be applied for the use of a work of music, which means that a tune may not recognizably be taken from a work and used as the basis for a new work.
§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.
§26 Droit de suit
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:
4 percent for the portion of the sale proceeds of up to EUR 50,000,
3 percent for the portion of the sale proceeds of EUR 50,000.01 to EUR 200,000,
1 percent for the portion of the sale proceeds of 200,000.01 to 350,000 euros,
0.5 percent for the portion of the sale proceeds of 350,000.01 to 500,000 euros,
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 right of succession is non-negotiable. The author shall not waive his 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.