Imagine, you own a cow. Someone comes to your farm, takes a photo of your cow, leaves, and a few weeks later you find this photo on some commercial website. Can you do anything against it? Do you have an exclusive right to make and distribute photos of your cow? The Local Court of Cologne decided on this situation two years ago and said: No, taking photographs of someone’s cow does not infringe on any exclusive rights of the cow’s owner, and a photographer may publish photos taken of this cow.

I mention this because a three-week old decision by the District Court of Berlin (Landgericht Berlin) I just read reminded me of this curious case. However, it seems that (absurdly) the Berlin court would have ruled in favor of the cow’s owner. Let’s take a look:

1.

The new case was about a documentary on the graffiti scene in Berlin. The documentary contained footage taken of trains and train station in Berlin that are owned by the local public transportation authority (BVG). BVG didn’t like the documentary, allegedly fearing that it could encourage copycats to start spraying their trains, too. Therefore, BVG sued the film producer and asked the court to enjoin him from distributing the footage. The court granted this prayer. It argued that both making and distributing the footage without BVG’s consent constituted an infringement of BVG’s property rights, provided that the footage had been taken while being on BVG property.

2.

The court relied mainly on a Federal Supreme Court ruling from 2010 where the government-owned foundation Stiftung Preußische Schlösser und Gärten Berlin-Brandenburg had sued a photo agency over the marketing of all kinds of photographs taken of monuments like the Sanssouci park and palace that are, subject to certain conditions, open to visitors. According to this decision, infringements of rights of ownership are not limited to situations where the property is physically affected or its owner handicapped in her use of her property. Rather, every way to use the property against the owner’s will constituted an infringement of property rights. Thus, making and distributing photographs of someone’s park, building, or other objects while being on this person’s property was only allowed when done with the owner’s consent.

3.

This line of reasoning was subject to heavy criticism, and rightly so. First of all, it has no foundation in general German property law. Sec. 903 of the Civil Code (BGB) defines the scope of the rights an owner of a thing can rely upon:

“The owner of a thing may, to the extent that a statute or third-party rights do not conflict with this, deal with the thing at his discretion and exclude others from any interference.”

Making photos of a physical object does not interfere with any of the rights granted by sec. 903. The owner continues to be able to use it as she pleases and may still exclude others from its use or from any way to make an impact on the thing.

Moreover, the Federal Supreme Court – and now also the District Court of Berlin – confuses the protection granted to tangible goods on the one hand and to immaterial goods, like copyrights, on the other. A look at sec. 59 of the German Copyright Act reveals that owners of tangible property should not have an exclusive right to use pictures of their property. It reads in its relevant part:

“It shall be permissible to reproduce, by painting, drawing, photography or cinematography, works which are permanently located on public ways, streets or places and to distribute and publicly communicate such copies. “

This provision makes it clear that everyone is allowed to make photographs of buildings and monuments in the public space, at least from points that are publicly available, and to sell those photographs. When the Copyright Act was enacted, obviously nobody intended to allow under copyright what would generally be forbidden under property law.

Interestingly, all the arguments above stem from a decision the Federal Supreme Court itself has handed down in 1989 (Friesenhaus). How come that the court has apparently changed its mind? One simple answer is: Whereas in 1989 a senate that was familiar with copyright issues had been responsible for the matter, the 2010 decision was handed down by a senate normally dealing with real estate cases. And then, the court apparently got sidetracked by the circumstance that in the more recent Sanssouci case, the photos had not been taken from public ground but from places that could only be reached because the owner of the parks and palaces had given permission to do so. So, the court ignored the crucial part of the Friesenhaus decision, namely that taking photographs can as a matter of principle never affect the property in the objects being photographed, and came to the conclusion that the place where the photographer stands makes a difference.

It is disappointing to see the Berlin court follow.

4.

All this being said, I should make clear that I do not question that land owners are in fact entitled to tell their guests to not make photographs of their property. But this should not mean that later on, the property owner could sue anyone who reproduces, distributes or modifies a picture taken despite the interdiction, no matter what the picture shows. The owner’s and the users’ options would always depend on case-specific circumstances and aspects like privacy, sanctity of the home, existing copyrights, etc. I do not see any of these aspects come into play for a public transportation company or the owner of century old parks and museums, though.