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EU: Portrait photos are protected by copyrights

05-21-2012 07:57 PM CET | Politics, Law & Society

Press release from: bunk-alliance Rechtsanwaltsgesellschaft mbH

Portrait photos enjoy a copyright protection since they form an intellectual creation by the originator, in which the originator’s personality is depicted by his free creational decisions in the making of the picture. Therefore portrait photos by third parties must not be used by the publishing press on their own initiative, invoking public security goals, without referring and naming the third party as originator.

In a preliminary ruling, the ECJ decided in favor of a copyright protection of portrait photos. The photographer took portrait photos of Natascha K., before she had been kidnapped and held hostage for years. After having fled her kidnappers, the portrait photos of Natascha K. were published by Standard Verlags GmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co. KG and M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co. KG in their newspapers and magazines. The publishing press had used the portrait photos made by the plaintiff and which prior had been used by the competent authorities in its call for information from the public on the missing Natascha K. The press, however, did not name the plaintiff as originator of the portrait photos.

Despite the in principal limited composition possibilities with respect to portrait photos, the European Court of Justice awarded a copyright in favor of the plaintiff and saw an intellectual creation in the photographs, being depicted by a free creative decision making process. The ECJ saw the creative composition, for example in the position of the person being portrayed, her facial expression, the illumination, the decision about the detail of a photograph, perspective and atmosphere as well as the selection among the several developing techniques. Due to all those decisions, which have to be made by the photographer, even a portrait photo is given a “personal touch”.

The copyright does also not retreat behind alleged objects of public security purported by private legal entities, if and to the extent that private legal entities do not act in collaboration with the competent national authorities, being responsible for the public security and if the steps and actions taken by the publishing press have not been taken in consultation and agreement with those authorities. The ECJ points out that it is the responsibility of the member states on their respective territory to define the pre-requisites for public security. However the initiative for publishing copyright-protected works without mentioning the originator, must be taken by the governmental security authorities, which can revert to private legal entities, such as the publishing press, if needed, to fulfill their tasks. This is appropriate, since it is a matter of course that the legally protected right of public security must be able to outweigh copyrights, on the other hand side it must be ensured that the legally protected right of public security is not pretended in order to circumvent or constrain copyrights.

The aforementioned judgment shows that there is sufficient room, even within a limited creative space, for establishing copyrights and it can be assumed that those copyrights will have an even greater importance in the near future.

The law firm was established in 2003 by Dr. Artur Bunk, an Attorney-at-Law. Qualified in 1995, he was admitted to the Frankfurt Bar in 1997 after obtaining an LL.D. in European Law at the University Viadrina in Frankfurt (Oder). During his career he has worked with the German law firm Pünder, Volhard, Weber & Axster (now Clifford Chance), was Head of Office at Rödl & Partner in Poland, and Senior Legal Counsel at the Legal and Restructuring Department of KfW. In addition to German, he also speaks fluent English and Polish.

Our offices are based around 45 minutes from Frankfurt/Main International Airport in and approx. the same distance from Frankfurt City.

Thanks to the professional experience and background of our Principal and our Attorneys we are in a position to meet the highest requirements and expectations of international clients, which forms an integral part of our business philosophy, enabled us to establish a profound know-how base on international matters unmatched by law offices of comparable size and background. With our network of external consultants (auditors, tax advisors), we are well equipped to perform advisory services usually only found in much larger law offices. Our comparatively low overheads and flexibility enable us to provide our services on a competitive basis.
bunk-alliance has established a close cooperation with law offices in Italy, India, Poland, Slovakia, with auditors and tax advisory offices in Germany and Poland and various governmental agencies.

Office Worms
Goethestr. 15
67547 Worms

Phone: +49 6241 97249 0
Fax: +49 6241 97249 11

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