Copyright

by Glyn Moody


Filed Under:
copyright, germany, photographs, public domain

Companies:
wikipedia



Multiple German Courts Rule Photos Of Public Domain Works Are Not In The Public Domain

from the and-no,-you-can't-take-your-own,-either dept

Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements.

For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain.

The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken.

These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that.

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  • identicon
    Manok, 16 Jun 2017 @ 8:44am

    This is a very creative way to change public domain into 'copyrighted forever'. No longer need for a Mickey Mouse extension of the copyright rules!

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 16 Jun 2017 @ 9:29am

      Re:

      Exactly right! If merely taking a picture "injured" the ownership of the object, you can't make copies, can't make derivatives, can't use in new ways because they injure the ownership of the original. That sounds like copyright to me!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jun 2017 @ 12:21pm

        Re: Re:

        Hmmm - that means I am "injured" every time I walk into a place of business where they have CCT taking my picture.

        They owe me a lot of money - wooohoooo

        reply to this | link to this | view in chronology ]

      • identicon
        Bruce C., 16 Jun 2017 @ 2:26pm

        Re: Re:

        For ancient objects or objects produced using low-grade materials, a flash-photography ban can have some merit in protecting the works from light damage. But other than that, what is the harm the museum could suffer? This ruling excludes photography from the public domain. A ceramic artist could make reproductions of an object owned by the museum and that is allowed because the object is in the public domain and the artist isn't actually in the museum making the copies. But a photographer can't make a copy?

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 16 Jun 2017 @ 2:57pm

          Re: Re: Re:

          In this case, the "injury" is (allegedly) lowered souvenir sales in said museum. No one will buy their reprints of masterpieces if they can get a low-res picture off the internet. >_>

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jun 2017 @ 8:53am

    Germany is crazy

    Germany is really crazy nazi country.

    They still have a law making it a crime to insult the flag, national anthem or religious feelings.

    reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 16 Jun 2017 @ 9:07am

      Re: Germany is crazy

      German has flags still? I read that the German flag, and German national anthems are rarely ever seen in Germany after Hitler (who made heavy use of nationalism to brainwash the populace).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jun 2017 @ 4:25pm

        Re: Re: Germany is crazy

        Hitler (who made heavy use of nationalism to brainwash the populace).

        They haven't exactly rejected everything Hitler promoted. Hitler loved copyright.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jun 2017 @ 9:01am

    1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

    2) Wikipedia is not the public but a privately-owned corporation using the images for gain (in some mysterious indirect way).

    Common law is so diffuse that it's difficult to state (particularly to corporatists whose sole interest is to gain money from any property they can find unguarded), nonetheless rulings coming out of Europe of late seem well-based.

    In contrast to the assertions this minion makes, we're told that the Techdirt site which provides a comment box asking for input from public, is entirely private property and use is by permission, clear case of saying whatever serves purpose of the moment.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jun 2017 @ 9:18am

      Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      lol

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jun 2017 @ 9:33am

      Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      Do you restrict yourself to
      1) Not Using a camera at all.
      or
      2) Finding and asking the owners of all the property that is in the viewfinder whether you can photograph their property.

      If you use optiion2, how do you get permission for with moving vehicles that you might photograph?

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 16 Jun 2017 @ 9:49am

      Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      In most places you DO have the right to take those images. It's commonly known as "Freedom of panorama." The images in the article however were taken in a museum, not visible from a public space.

      If you want to protect industrial secrets, keep them hidden from public view.

      ...using the images for gain (in some mysterious indirect way).

      The page you posted this on has a sidebar link to an article called "The Grand Unified Theory On The Economics Of Free." It's only scary and mysterious if you keep your head buried in the sand.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jun 2017 @ 12:26pm

        Re: Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

        Is the museum funded by the public?
        If so, it technically is public space.

        reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 16 Jun 2017 @ 1:17pm

      Re:

      1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      Perhaps not on your property, but from a public space, YES, absolutely YES, I have the right to photograph anything and everything I can see, at least in the United States. The eyes cannot trespass. This has been established by our courts many times over and is based on English common law. Same goes for your "industrial secrets", if you don't want it photographed, put a building around it.

      reply to this | link to this | view in chronology ]

      • icon
        Matthew Cline (profile), 16 Jun 2017 @ 7:29pm

        Re: Re:

        Same goes for your "industrial secrets", if you don't want it photographed, put a building around it.

        I think he's trying to say that if our position was right, then using the same logic that if an industrial spy who snuck into a room and took a photo of an industrial secret, then industrial secret laws wouldn't apply to that photo an information gained from it. This ignores the fact that the objects in question are public domain (and hence copyright no longer applies), but industrial secret laws do apply to industrial secrets that are kept, well, secret.

        Then again, perhaps he holds to an interpretation of common law copyright where copyrights are perpetual, and hence artwork never falls into the public domain.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jun 2017 @ 1:17pm

      Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      Wikipedia may not be public but it isn't a corporation either. It is a non-profit organization.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jun 2017 @ 5:17pm

      Re:

      in some mysterious indirect way

      So there's no proof, aside from out_of_the_blue having a wild conspiracy theory. But consider that he was a supporter of SOPA, and SOPA was protested against by Wikipedia (long before Google chipped in, it's worth pointing out, but he hates that fact). It's no surprise for out_of_the_blue to hold a grudge.

      Common law is so diffuse that it's difficult to state

      Apparently common law is supposed to be obvious, hence you feel entitled to swing it around to argue against things like fair use - but suddenly it's so diffuse you can't even define the damn thing.

      Why, it's almost like everything you spout is nebulous bullshit meant to cater to a convenient narrative or something...

      reply to this | link to this | view in chronology ]

    • icon
      Matthew Cline (profile), 16 Jun 2017 @ 7:17pm

      Re: 1) Just because you're on or near my property and have a camera doesn't mean you've a right to image anything and everything I own. -- If so, industrial secrets are included, right?

      Common law is so diffuse that it's difficult to state

      So you can't cite which parts of common law back up your assertion, but we're just supposed to believe you, an anonymous figure, because... ?

      reply to this | link to this | view in chronology ]

  • icon
    ShadowNinja (profile), 16 Jun 2017 @ 9:04am

    What if famous people used this logic?

    What if famous people decided to use this logic to hide their faces from the public?

    Want to show a picture of Abraham Lincoln? Sorry, but even though photographs of him are all in the public domain, your copies of the picture are not. You have to go to a historical society or a museum to see how Lincoln looked like.

    Oh, and while we're at it, we really don't like it how these history books are describing Lincoln as a very tall guy. It's injuring the intellectual property of those Lincoln photographs by telling people what Lincoln looked like!

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 16 Jun 2017 @ 9:32am

      Re: What if famous people used this logic?

      What if famous people decided to use this logic to hide their faces from the public?

      Under this ruling that would only work in a private museum or residence. If various Trumps for example want to control images in public, I suggest dazzle camouflage.

      It worked for ships in WWI and WWII. It's used today to camouflage "next year's model" cars during testing. It could work for celebrities.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jun 2017 @ 12:28pm

        Re: Re: What if famous people used this logic?

        If the trumps want to go into exile, I'm sure most people would not stop them.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jun 2017 @ 8:00am

          Re: Re: Re: What if famous people used this logic?

          If he didn't, I'm sure most people wouldn't stop him either! One thing is for sure, you loons are doing nothing but making sure he'll get a second term.

          reply to this | link to this | view in chronology ]

  • icon
    Peter (profile), 16 Jun 2017 @ 10:11am

    Prohibiting Photography is quite popular in German museums, presumably to force sales of their overpriced catalogues. And, presumably, they'd be quite happy to sell pictures to Wikimedia as well, professional quality for professional prices.

    Shame on the courts (and on the government, who sponsor the museums and could instruct them to play fair) for supporting these extortion practices.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonmylous, 16 Jun 2017 @ 11:33am

      Re:

      Prohibiting photography is popular in many museums around the globe as light has a proven detrimental effect on the many materials used to create art, and the general public are not competent enough in how to use their cameras to avoid using Flash in low light environs. While a side-effect of this may be that museums are in a better position to make money from the sale of trinkets, the net benefit is less money spent on restoration efforts in the long run, and less chance of losing something in those restoration processes.

      The museum in this article and the German government both have their heads up their asses. Images of public domain works can be covered by copyright, but the "owners" of those works have no say or investment in that copyright. The copyright, in Music copyright/license parlance, is essentially a composition right, not a materials right. The composition of the image is what is being covered, elements in frame, framing in general, angle, exposure, contrast, filtering, depth of field, etc all come together to present an image that was composed and captured by the photographer. This composition can portray the piece of art in a way vastly different from the original artist's intent. That's why photography is an art and not merely a method of reproduction.

      I do hope their high court gets this right and sees the wealth of damage they are about to do to the entire world if this ruling is allowed to stand. Art is meant to be shared, culture is meant to evolve and transform, and art must do that as well.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jun 2017 @ 12:34pm

        Re: Re:

        "the general public are not competent enough in how to use their cameras to avoid using Flash in low light environs"

        Yeah, those ignorant amateur photographers don't know squat about photography, but the highly paid professionals do - lol.


        "a side-effect of this may be that museums are in a better position to make money from the sale of trinkets,"

        This is hardly a "side effect", making money is the primary reason.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Jun 2017 @ 3:01pm

        Re: Re:

        Flash photography does not harm nor have any detrimental effects.

        http://people.ds.cam.ac.uk/mhe1000/musphoto/flashphoto2.htm

        reply to this | link to this | view in chronology ]

  • identicon
    DogBreath, 16 Jun 2017 @ 10:39am

    Do you know what time it is?

    It's time to set loose Naruto with a camera into the museums of Germany.

    Check and Mate.


    P.S. You may not get the greatest pics, but you can damn sure get a few to use for Wikimedia, unless the German courts want to start letting monkeys hold copyrights.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 16 Jun 2017 @ 11:37am

      Re: Do you know what time it is?

      You missed part of the article - it doesn't matter WHO takes the picture, if the picture "injuries" the ownership of the object, pictures aren't allowed. Period.

      reply to this | link to this | view in chronology ]

      • identicon
        DogBreath, 16 Jun 2017 @ 12:30pm

        Re: Re: Do you know what time it is?

        Missed? Not at all:

        https://irights.info/artikel/gericht-bestaetigt-wikipedia-nutzer-muss-fotos-gemeinfreier-werke-l oeschen/28541

        "Durch den Besuch des Museums und Piktogramme im Gebäude habe sich ein wirksamer Vertrag ergeben, der ein Fotoverbot enthalte."

        in English:

        "By visiting the museum and pictograms in the building, an effective contract had been established, which contained a photo ban."


        Try enforcing a contract on a monkey. I dare you.

        At best if you sue, all you'll get paid is in bananas, at worst poo will be flung your way. Lots and lots of poo.

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 16 Jun 2017 @ 3:00pm

          Re: Re: Re: Do you know what time it is?

          You're STILL ignoring their claims of injury, which the court bought whole-hog.

          reply to this | link to this | view in chronology ]

          • identicon
            DogBreath, 17 Jun 2017 @ 11:43am

            Re: Re: Re: Re: Do you know what time it is?

            Hey hey hey! We're talking about monkeys taking photographs here. Nobody informed me we would be including hogs in this case too.


            Ah yes, the injury...

            (The museum can not be said to be alone on the fact that the works are on its property, but on its ownership of the paintings and objects."However, ownership of the (copyrighted) thing is violated when it is photographed," the judges said. The freedom of the community does not allow us to use "the physical work piece, but only the spiritual work embodied in it.")

            So, if I take a picture using Spirit Photography, it should be OK. Thanks for the clarification, German Courts!



            If their "thing" is so easily injured by just taking a picture of it, then maybe they should lock it up in a vault so just any old free-range monkey wandering through their museum can't take pictures of it.

            Soon the German courts will be saying just looking or thinking about the "thing" is an "injury", and after visiting the museum, you will need to pay a yearly synapse transfer media fee for storing and accessing the image in your brain.

            The way things are going, it appears that this kind of pseudo-copyright in Germany will last for a thousand years, at the very least.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jun 2017 @ 12:35pm

      Re: Do you know what time it is?

      But what about all the feces on the walls and floor?
      Ewww.

      Wait a sec, would that be copyrightable?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jun 2017 @ 1:20pm

    Injuring ownership?

    If taking pictures "injures" the ownership of the object, what happens when lots and lots of people photograph and distribute pictures of one of their paintings? Can I buy it for a few hundred bucks now?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jun 2017 @ 1:48pm

    Is the winner of the case whoever can spell "Bundesgerichtshof" correctly?

    I'm sure everyone there is German, but still!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jun 2017 @ 2:20pm

    No public domain thanks to copyright cartel overlords.

    reply to this | link to this | view in chronology ]

  • identicon
    Adrian Lopez, 16 Jun 2017 @ 3:34pm

    German law vs US law

    Those pictures would be public domain under US law, so what if US-based Wikimedia Foundation refused to take them down? Could they be forced to abide by German law despite having no physical presence in Germany?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 16 Jun 2017 @ 3:39pm

      What pictures?

      In cases like this I think the most appropriate response is to give them exactly what they claim to want. No mention of the works, no reference, for all intents and purposes the works simply do not exist.

      They want to lock historical works behind a tollbooth then great, society can dismiss them completely and move on to more important works that aren't locked up and can be shared.

      reply to this | link to this | view in chronology ]

      • icon
        Atkray (profile), 17 Jun 2017 @ 10:29pm

        Re: What pictures?

        Agreed. Edit the page to say the museum will sue if we use public domain photographs to demonstrate what you may find if you visit, so we cannot post any images. Consequently we suggest that if in town, you just skip the museum and find a friendly place for some bratwurst.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jun 2017 @ 8:05am

        Re: What pictures?

        That includes erasing all mention of the Museum. Have it all just wiped off the Internet as they don't exist. Their problem is now solved. No one will miss them or anything in their place.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 16 Jun 2017 @ 3:35pm

    Hello eternal copyright

    So you can't take pictures, the museum obviously isn't going to provide pictures unless people pay for them(and even then you can be sure they'll slap a 'not to be resold or shared' condition)... seems like the german courts have just made eternal copyright a fact in the country. So long as they own the pictures they will never enter the public domain, as doing so would 'harm' the museums.

    Their greed transformed them from curators and preservers of history into just another set of gatekeepers to it.

    reply to this | link to this | view in chronology ]

  • identicon
    Almach, 16 Jun 2017 @ 4:21pm

    "not some mechanical process like a photocopier"

    What's the difference? Isn't a "photocopy" just a photo taken with the help of a sort of light table? You can choose the subject, the angle and the exposure, like with a point-and-shoot camera. Case in point, I have a "photocopy" app on my phone that uses the phone's camera to make copies. Are photocopies made with my phone camera copyrighted in Germany or not?

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 20 Jun 2017 @ 11:05am

      Re: "not some mechanical process like a photocopier"

      The position from which the photograph is taken, and the angle at which it is taken, combine into what is termed the "composition" of the photograph; that composition is considered to be a creative element (including I think in US law, although other factors may override there in some cases), and it is that creativity which differentiates the photograph from the output of a photocopier.

      Now, if you really wanted to, you could try putting the original on the photocopier glass at odd angles and arguing that this choice on your part of how to pose the model constitutes creative input and that you should get a copyright on the resulting photocopies because of that creativity. I'm not sure whether that would hold up in court, but if you happen to get the same courts that issued the decision in this article, you might have a chance.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jun 2017 @ 5:45pm

    The time has come, the Walrus said,
    to speak of many things,
    like eliminating copyright,
    the end.

    reply to this | link to this | view in chronology ]

  • identicon
    works, 24 Jun 2017 @ 10:36pm

    works domain

    the domain name works domain is a news tlds .works generation , i have a best domain works http://a.works best domain for seo marketing works business

    reply to this | link to this | view in chronology ]


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