Image Copyright (Germany) - Protection of Reproductions - Two-dimensional Originals

Two-dimensional Originals

It is generally agreed that a mechanical copy, e.g. a photocopy), by digitizing (as with an scanner) as well as the reproduction of public-domain typographic originals (books, documents, etc.) and photos of public-domain originals (a picture from a picture) do not create a claim of ownership. In 1989, the then West German Bundesgerichtshof (supreme court) judged that identical reproductions, as described above, cannot be protected by copyright.

The Oberlandesgericht Düsseldorf decided in 1996 that photographic reproductions, issued as postcards showing the works of Joseph Beuys, were not to be used as templates for digitization. Photographing two-dimensional templates in itself does not constitute an "artistic work", but sound and specialist methods used to do so does. A protective period due to § 72 UrhG for up to 50 years after the first publishing was issued.

This decision contradicted the opinion of the Supreme Court, which was affirmed again in 2000 in a judgement of 7 December 2000, Telefonkarte (calling card), (Az. I ZR 146/98):

" Independently thereof the picture, for which the plaintiff claims the protection of § 72 UrhG, would have to be more its than a bare technical reproduction of an existing graphics. Because the technical reproduction procedure alone does not justify a photo protection (see BGH, judgement from 8 November 1989 - I ZR 14/88, GRUR 1990, 669, 673 - Bible reproduction, m.w. N.; Schricker/Vogel, copyright, 2. Aufl., § 72 UrhG Rdn. 22). Rather a minimum of personal mental performance is necessary, which is to be denied if a photo or a similarly manufactured product is not any more than the bare technical reproduction of an existing representation."

In the United States, a Federal court decided, in its 1999 case Bridgeman Art Library vs. Corel Corporation, that original, faithful photographs of paintings were not copyrightable, since the originality is missing. (United States District Court for the Southern District of New York, 18 February 1999). The software producer Corel Corp. had used slides of the Bridgeman Art Library for the picture collection of its own CD-ROM.

If a raw photograph and/or reproduction of a public-domain original is published in a book, then the predominant jurisdiction assumes this illustration can be reproduced at will, without agreement of the photographer and the publishing house.