Photographic right

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Photography and the law: two closely intertwined fields

At first glance, photography and the law refers to a different areas that do not have much in common. When you think of photography, you immediately think of an artistic profession that aims to reproduce the image of things, nature and people. However, this is the exact point at which it links to the field of law. The minute someone photographs something, many different consequences can arise. For this reason, every photographer must know precisely what their rights and obligations are. Many questions that require an answer arise in this connection: what is one allowed to take a photograph of and when? Which photographs may be published? In which cases is the photographed person’s consent required? Is consent from the owner also required when photographing objects? What rights do you have if your own photograph is published by a third party?

 

What do you need to observe if you take photographs of other people?

If you take photographs of other people, there are always some conditions that must be met and criteria that must be observed. Legal problems that can be easily avoided can arise due to a lack of knowledge of the law in this field.

We will explain what you need to observe when photographing other people and publishing these photographs.

First, for a legal assessment, one needs to distinguish between merely photographing people and publishing the image.

In principle, if you want to take a photograph, only take photographs of the persons who have given their consent. This consideration arises from the fact that general personality rights pursuant to Art. 2 (1) in conjunction with Art. 1 of the German Basic Law (GG) are violated if a photograph is taken of a person without their consent. However, there are some exceptions such as if a photograph is taken for purely private purposes e.g. while on holiday. Only in the rarest of the cases will it be possible to photograph a tourist attraction without other people in the background. The exception provided for in Section 23 (1) no. 2 of the German Copyright Act for Works of Art (KUG) thus applies here. In such cases, the persons photographed are merely regarded as an “accessory” and consent does not need to be obtained. The circumstances of the individual case must always be observed.

In all other cases, consent is required. It can be given explicitly or even implicitly. An example for implicit consent for a photograph is if the person deliberately looks into the camera and tolerates the photograph being taken. Therefore, if a person notices that they are being photographed and tolerates it or even deliberately looks into the camera and even smiles, this is regarded as implicit consent. The photograph can be taken without any risk.

Even minors need to give valid consent. Taking a photograph is not a legal transaction and legal capacity therefore does not play a role. For this reason, minors’ legal guardians do not need to give consent for having their minors photographed. However, the situation is different if the pictures taken are to be published.

Stricter rules apply to the publishing of photographs than to the mere taking of photographs. This applies to all pictures that depict the image of a person or several people. First, the so-called right to one’s own picture that each person is entitled to must be assumed. This right is entrenched in Section 22 KUG, which states that a picture may only be disseminated and made public with the consent of the person being photographed. Section 22 sentence 2 KUG states that consent can always be assumed if the person being photographed receives compensation for the photograph. It is important to note that the person must know exactly what the picture will be used for and that they give their consent based on this intent. No particular form is required for the consent. However, in order to prevent difficulties at a later stage, it is recommended that the consent is obtained in writing.

 

Photographing buildings – freedom of panorama?

The so-called “freedom of panorama” applies to photographing buildings or works of art that, in principle, enjoy copyright protection. This makes it possible to photograph buildings and other works of art without having to obtain consent. The significant factor here is that they must be visible from public pathways. Therefore, in particular for buildings, this includes taking photographs from the outside, see Section 59 of the German Copyright Act (UrhG). The Act states that the consent of the owner must be obtained if photographs are to be taken inside a building.

For a brief time, the freedom of panorama appeared to be in danger as the EU Parliament recently discussed a wide ranging restriction thereof. The idea behind this was to ensure greater protection for architects and artists. In this case, the consent of the copyright holder would have to be obtained before a photograph could be published. After several discussions the Parliament, however, voted against the restrictions with a majority. Thus far, it is expected that the freedom of a panorama will be maintained for now. In Germany, photographs can continue to be taken without issue.

 

Photographing of objects protected by copyright

Photographing and publishing a picture of objects protected by copyright – e.g. a painting – depends on the individual case. If you only use the object protected by copyright as an “incidental work” as defined in Section 57 UrhG, then you have nothing to worry about. Photographing, duplicating and publishing a work protected by copyright is permitted only if it appears as an “incidental work” and a completely different object appears in the foreground, where the intention is to photograph, duplicate and publish this completely different object. Therefore, always look at the manner in which you present a work protected by copyright. You must avoid creating the impression that you intended to place the incidental work in the foreground.