In October 2015, the Reiss Engelhorn Museum in Mannheim, Germany, filed a lawsuit in the Regional Court of Berlin against the Wikimedia Foundation and Wikimedia Germany. The suit concerns copyright claims related to 17 photographs of works of art on display at the museum. The photographs were commissioned by the museum and were later uploaded to Wikimedia Commons — an online database of works distributed under creative commons licenses — by a third party.
The paintings, portraits, and other works of art at issue are all in the public domain. For example, one of the works is a portrait of Richard Wagner that was painted in 1862. Thus, its copyright term ran out long ago. However, photographic reproductions of such paintings may be copyrightable. In some cases, copyright may subsist in photographic reproductions of public domain art depending on whether they are the author’s own intellectual creations (section 2 para. 2 of the German Copyright Act). Exact photographic reproductions of the work of art itself, however, lack creativity and, therefore, do not qualify for copyright.
According to a Wikimedia statement, the Reiss Engelhorn Museum claims that copyright applies to the photographs at issue in this case because the museum hired the photographer who took the photos, and it required his time, skill, and effort to take the photos. Wikimedia, on the other hand, believes that the Museum’s attempt to create new copyright on public domain works goes against European principles concerning public domain art. It states that “[c]opyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain, such as the paintings” that are housed in the Reiss Engelhorn Museum.
The question of whether copyright applies to photographic reproductions of public domain art cannot be answered easily because the protection of photographs is subject of varying regimes.
In Germany, the protection granted to photographs is not just limited to copyright (“photographic works”, section 2 para. 1 No. 5 of the German Copyright Act). Photographs can also obtain protection under a so-called neighboring right in section 72 of the German Copyright Act in which case no creativity on the photographer’s part is required. The scope of protection conferred by this neighboring right is, however, essentially equivalent to copyright, albeit with a shorter term.
Protection under section 72 of the German Copyright Act for photographs of works in the public domain is somewhat unclear. While it is widely undisputed that, in principle, these photographs are eligible for protection, a recent decision by the Regional Court of Nürnberg (32 C 4607/15) seems to suggest that the provision’s literal application should be “teleologically reduced” in cases where the boundaries of the public domain would be otherwise circumvented.
Lastly, the copyrightability of reproductions of two-dimensional images might also be judged differently than reproductions of sculptural works or other three-dimensional objects. In the latter case, the photographer is probably more likely to introduce creative choices about angles, lighting and background, which might, in some cases, even lead to copyright protection as a photographic work.