In dealing with art, be it through auction houses, galleries or collectors, it is inevitable that works of art will be photographed. Irrespective of whether such a photograph is taken for documentation, publication or other purposes, one should be aware of some basic legal contexts so that there are no discrepancies in the use of the illustrations or, in the worst case, legal disputes. Attorney Dr. Felix Michl from Heidelberg summarizes the legal situation. He recommends that you read the relevant paragraphs of the Copyright Act (UrhG).
The aim of the Copyright Act is to assign to the author (i.e. the creator of a copyright work; § 7 UrhG) the proceeds from all uses of his work (§ 11 sentence 2 UrhG).
In order to make this possible, copyright law distinguishes between the concrete workpieces in our physical world and the immaterial work behind them. The connecting factor for copyright is always the immaterial work (§ 2 UrhG), i.e. the intellectual creation of the author, which can then be physically reflected in various workpieces. The distinction becomes clear when one imagines, for example, that the original of an oil painting (which in turn is only a workpiece) is destroyed. Copyright remains completely unaffected by the destruction of the original because it is linked to the immaterial “idea of the work”. In simple terms, the immaterial work can also be imagined as a blueprint floating above everything, from which the physical workpieces are derived.
Copyright protection therefore means that in the example of an oil painting not only an exact copy of the “original” interferes with the copyright of the original creator, but also all other embodiments of the same immaterial work. These can be, for example, simple reproductions on postcards, elaborate art prints, but also clearly altered forms of the work such as the transfer into an etching (so-called “adaptations”, § 3 UrhG). Even the mere photographing of one of these embodiments of a work (and thus the creation of another “copy” in the form of a negative or a digital file) constitutes an encroachment on the right of reproduction (§ 16 UrhG), which is exclusively due to the author.
In practice, this also means that the ownership situation and the copyright situation with regard to a work of art often have little to do with each other. In particular, the owner of a copyrighted work of art does not automatically also have the right to photograph this work of art and to use this photograph e.g. on the Internet. The ownership position of the work of art gives the owner the right to dispose of the concrete, physical work, i.e. he determines, for example, whether it is exhibited. However, the owner has no right to dispose of the immaterial work embodied in the subject matter and protected by copyright as long as he has not been granted such a right by contract (Section 44 (1) UrhG). Photographing would create a further “reproduction” of the immaterial work from the point of view of copyright law. However, since the production of such reproductions is exclusively reserved to the author himself (Section 16 UrhG), third parties – including the owner of the work of art – may only reproduce the work if the author has permitted them to do so. In copyright law, this is referred to as the granting of a right of use (Section 31 (1) UrhG). Rights of use may be granted informally or even orally. For reasons of proof, however, the parties should always insist on a written agreement.
Irrespective of the granting of rights of use, there are also the so-called “copyright barriers”. These are special regulations which allow certain uses of a copyright-protected work partly free of charge and partly against lump-sum remuneration (Sections 44a-63a UrhG). However, as exceptions to the principle that all uses are actually reserved for the author only, these exceptions have very narrow areas of application.
Particularly interesting for museums and the art trade is the limitation provision of § 53 UrhG, which allows the free use of works within narrow limits in the context of the advertising of events (often referred to as “catalogue picture freedom”). Since, however, the limits to a fee-paying use can quickly be exceeded here, it should be carefully examined in each individual case whether the conditions of the limitation provision of § 53 UrhG are actually complied with.
From the point of view of copyright law, it is completely unobjectionable to photograph a work of art only when the copyright to the work has expired 70 years after the death of the author (§§ 64, 69 UrhG). In this case, however, it must still be taken into account that the owner of the work of art (e.g. a museum) may have issued a prohibition on taking photographs, the violation of which may result in contractual claims.
Particularly from the point of view of intermediaries such as galleries, it should also be noted that the production of a reproduction photograph of a work of art creates a new work protected by copyright either in the form of a so-called “photograph” (Section 72 UrhG) or in the form of a “photographic work” (Section 2 (1) no. 5 UrhG), to which the photographer in turn holds rights. Here again, it applies that a third party may only dispose of this copyright work if the author has granted him the corresponding rights of use. In the case of reproduction photography of a work which is still protected by copyright, the user of this photograph must therefore obtain the corresponding rights of use from two authors: once from the author of the work depicted and once from the author of the photograph. Especially when commissioning external photographers, it is therefore advisable to have the required rights of use granted directly by contract in order to avoid later differences of opinion with regard to their scope.