Soon we will be allowed to travel everywhere again. Hopefully without the fear of corona and without a guilty conscience.
Just in time for our travel plans, the German Federal Court of Justice (BGH) has announced an interesting ruling:
1. The decision of the BGH from 18 May 21
The booking platform Booking.com may not prohibit the providers (hotels and other accommodations) represented on the portal (platform) from offering customers better conditions on the hotels' own website than on Booking.com, i.e., for example, more favorable prices.
The so-called best price clause contained in the (former) contracts of Booking.com with the hotels is invalid.
2. The relevant legal considerations
Such best price clauses constitute restrictions of competition. By prohibiting hotels from offering customers better conditions on their own hotel website than on Booking.com, the hotels' freedom of competition is restricted. This causes disadvantages for the hotels, the hotel customers and for the free market.
The restriction of competition cannot be justified by the fact that it is allegedly necessary for the "survival" of the portal, as this would be the only way to get the "free rider problem" under control (customers inform themselves on Booking.com and then book directly on the hotel website).
The BGH (court) does not see a significant threat to the efficiency of Booking.com without the best price clauses.
3. Which are the relevant legal provisions by the way?
The relevant legal norms in this regard are not found in the German Civil Code (BGB) or the German Commercial Code (HGB), but somewhere else entirely: namely in European antitrust law.
Article 101 TFEU (Treaty on the Functioning of the EU) prohibits such restrictions of competition. It used to be called Art. 81 TEU (Treaty on EU); and very early on, when I was a student, it was Art. 85 TEU. Later, the provision was moved to Art. 81 TEU, and today it is to be found in Art. 101 TFEU (= Treaty on the Functioning of the European Union). In my opinion, this does not serve the purpose of clarity, but what the heck. ...
So we are dealing here with antitrust regulations. Antitrust law is largely shaped by European law, so that German antitrust law, codified in the GWB, is no longer of great importance in my opinion.
Independently of this, Booking.com is of course active throughout Europe, even worldwide, so that European antitrust law is certainly applicable for this reason.
It is an interesting question whether the case is also an issue for the US antitrust authorities. But we'll leave that for now. ...
4. A question of systematics
Instead, let's take a closer look at the BGH's reasoning from a systematic point of view.
a) According to Art. 101(1) TFEU, restrictive agreements are incompatible with the internal market and therefore prohibited; according to paragraph 2 they are void.
The agreement between Booking.com and the participating hotels that the hotels are not allowed to offer their customers more favorable prices on their own websites than on Booking.com is clearly restrictive of competition. No doubt about that.
The OLG Düsseldorf (higher regional court) already wanted to consider in the context of Art. 101(1) TFEU that ancillary agreements restricting competition which are necessary to ensure a main purpose of the agreement which is neutral under antitrust law are not inadmissible. In other words, a teleological reduction of paragraph 1. But the BGH on appeal did not go along with this. In the context of paragraph 1 TFEU, it is only a question of whether an agreement is restrictive of competition.
b) Exceptions to the prohibition of restraints of trade are then regulated in Article 101(3) TFEU, i.e. in the third paragraph of this provision. These exceptions can either be made on a group basis, i.e. by means of a so-called block exemption regulation (Gruppenfreistellungsverordnung), or on a case-by-case basis (individual exemption). But only if the conditions set out in the relevant block exemption regulation and/or in Article 101(3) TFEU are met.
In this case, a block exemption under the so-called Vertical Block Exemption Regulation (Vertical BER/Vertikal GVO) would come into question. According to this regulation, however, an exemption is excluded if the supplier's share of the relevant market amounts to 30% (or more) (see Art. 3 of the Vertical Block Exemption Regulation). This is the case with Booking.com. For this reason, an exemption according to the Vertical BER is out of the question from the outset due to the "market power" of Booking.com.
An exemption in individual cases would still be possible. However, according to 101 (3) TFEU, this requires that the restriction of competition is indispensable to bring about - to put it simply - advantages for consumers. Such advantages in this case would be the fact that Booking.com offers the customer a comfortable tool for "searching, comparing and booking" (advantages of efficiency). But this is rejected by the BGH in its ruling based on the reasoning that the best price clause is "not indispensable" for this.
c) The result is therefore a restriction of competition. This is prohibited, as there is no exception permitted either by a block exemption or by an individual exemption.
5. Course of proceedings
The eventful history of this legal case is also quite interesting.
First of all, the lawyers for Booking.com apparently thought that such a best price clause is legally permissible. At least the chances seemed so good to them that one could give it a try.
The Federal Cartel Office (Bundeskartellamt, BKartA) then took action against this and prohibited Booking.com from using the corresponding best price clause.
Booking filed a complaint against this ruling, and the Cartel Senate of the Düsseldorf Higher Regional Court ruled in favor of Booking.com.
For the time being, the last step: The Federal Court of Justice (Cartel Senate) has overturned the decision of the Higher Regional Court of Düsseldorf on the appeal of the BKartA, so that as a result the best price clause of Booking.com remains invalid.
What happens now, will Booking.com accept the BGH decision? Since we are dealing with European law here, I do not think it is impossible that the case will also go to the ECJ.
This case shows very clearly that even competent lawyers, authorities and courts can come to very different results in the legal assessment of a matter.
6. Effects for us as consumers
For us as travelers, the ruling shows that it makes sense not only to look at the hotel offers on Booking.com, but also to take a look at the websites of the hotels themselves. Maybe you will find better prices there.
As for me, I personally have often made the experience, at least this is my impression, that you do not necessarily get the nicest rooms when booking through a booking portal. So if you like to spend the night on an upper floor with a balcony and a view of the sea, it may well be worth calling the hotel reception directly and not limiting yourself to the 2 or 3 clicks on the booking portal, even if that is of course the most convenient way of booking.
With this in mind, I hope you enjoy planning your vacation.
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law
"Copyright is for Losers"
The exhibition "The Mystery of Banksy, A Genius Mind, An Unauthorized Exhibition" is currently showing in Munich and is well worth seeing.
Unfortunately, I cannot show you the pictures (graffiti, street art) here; but we could share a few thoughts about the legal questions connected with such an exhibition, if you like.
1. An "Unauthorized Exhibition", is such a thing permissible at all?
Banksy, you know, wants to remain anonymous. As the subtitle of the exhibition suggests, he has not authorized (approved) this exhibition of his works.
Is it then permissible to organize such an exhibition at all? What could speak against the permissibility?
Banksy once wrote, "Copyright is for Losers."
It is reported that he has nothing against people photographing his works for private use. What he does not like, however, and what he has even taken legal action against at times, is the commercial exploitation of his works by unauthorized people. With this attempt, however, he has already suffered shipwreck once.
In order to assert copyright claims against the commercial exploitation of his works by unauthorized persons, the author must prove his copyright and in this context also reveal his identity. But Banksy doesn't want that. He wants to remain anonymous.
Moreover, the exhibition does not show his originals, but rather reproductions, probably mostly photographs. As I have already explained in another article, it is permissible to photograph works of street art (graffiti) that are permanently affixed to public streets and places, and then also to commercially exploit one's own photos, e.g. to publicly exhibit them for an entrance fee. This is covered by the so-called freedom of panorama (Section 59 Copyright Act) or works in public places.
b) Trademark law
A motif can also be protected by trademark law.
Banksy, for example, had his motif of the "flower thrower" protected via a London company by registering a so-called Union trademark. However, this trademark was cancelled again in September 2020. Why? Because trademarks are cancelled again if they are not really used by the owner to identify goods or services. A trademark registration solely for the purpose of excluding others from using the trademark - as Banksy apparently wanted to do - is not permissible. One must also want to use the trademark oneself.
c) Right of personality, privacy
One could still think of prohibiting an "Unauthorized Exhibition" because it violates the personal rights (Persönlichkeitsrecht) of the person concerned.
Lieschen Müller (Jane Doe), for example, does not normally have to tolerate her life being dragged into the public eye against her will and put on display in the form of a film (biopic) or an exhibition.
But that is not the case here. Banksy is a phenomenon of our time that can be reported on. And the exhibition at issue here does not inadmissibly encroach on his private life or even intimate sphere, but is largely limited to presenting reproductions of his works. Apart from that, the exhibition is a tribute to the artist that puts him in a very positive light.
Even without Banksy's permission, such an Unauthorized Exhibition is, in my opinion, legally permissible.
This also applies to the sale of mugs, bags and T-shirts with Banksy's motifs in the store attached to the exhibition (Exit through the Gift Shop).
2. Are visitors allowed to photograph the Banksy works exhibited in the "Unauthorized Exhibition" themselves and then commercially exploit (sell) these photos?
a) Rights of Banksy
Well, Banksy would probably not take action against this (see point 1 a and b above).
b) Rights of the photographer
At the original locations, it is possible to photograph the Banksy works, if they are still there, within the framework of the freedom of panorama/works in public places (see above number 1 a, third paragraph). To do this, however, you would have to travel halfway around the world and sometimes to areas where you might not want to travel because it seems too dangerous or too burdensome.
This effort is taken up by the photographers who have photographed the graffiti at their original locations, and by the organizer of the exhibition, who presents the works - properly curated - for a reasonable entrance fee in Munich, Heidelberg and Berlin.
In this way, the photographer has acquired his own copyright to his photographs (Section 2 (1) No. 5 UrhG) or at least a photographic right under Section 72 UrhG, which he licenses to the organizer.
And this (copy)right of the photographer(s) would be violated if the photos were (commercially) photographed and exploited by others. Of course, the freedom of panorama does not apply to the photographing of photos in an exhibition.
Is it not allowed to take photos at all? Well, you are allowed to. Among other things, for private use (§ 53 UrhG) or in the context of editorial reporting (§ 50 UrhG). In any case, as long as the organizer does not prohibit it by contract (or in his general terms and conditions) by virtue of his domiciliary rights (Hausrecht, right of possession).
The result may sound somewhat absurd at first glance:
Although the artist Banksy himself has said that copyright is something for losers, and although Banksy would very likely not take action against an infringement of his copyright by an exhibition visitor, one is nevertheless not allowed to photograph his works reproduced in the exhibition and then commercially exploit one's own photos, as this would violate the photographer's copyright or the rights of the organizer.
Nevertheless, a visit to the exhibition is worthwhile in any case. And maybe even the genius mind Banksy himself would like it. Who knows. ...
(Well, he probably wouldn't have liked the Gift Shop so much. But what can you do? The wife wanted a mug (- the one with the balloon girl), the daughter wanted a T-shirt ("Follow your Dreams - Cancelled") and I thought the "Book to the exhibition" was quite good, too. And it would be even better, of course, if the proceeds went to Banksy, who then uses the money for a charitable project). ...
Copyright may be for Winners after all.
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law
How can you tell that you are getting old?
Maybe because tattoos don´t mean anything to you.
In the past, when I was around 20, only people who belonged to a certain milieu had tattoos. Sailors and drug addicts, for example. Or prison inmates. Popeye with an anchor on his muscular upper arm. Or with an arrow through his lonely, broken heart. ...
Today, on the other hand, even model girls "from a good family background" wear a little heart or an arrow or some combination of numbers on their ankle, forearm or elsewhere.
I have no appreciation for that. From my point of view, tattoos are banal signs without deeper meaning and often without aesthetic value. Most of these motifs you would not even want to hang on your wall for a week. Why have something like that engraved on your skin for a lifetime, I don't understand.
But maybe it's a playful way of dealing with evil? Take a walk on the wild side. Good girl gone bad. ... Like the reputable older lawyer or judge who listens to gangster rap in the evening and wears ripped (used, faded, destoyed) jeans on the weekend, or sneakers without laces. Just like in jail.
But tattoos also have a legal component, and this is what we want to take a closer look at now.
1. Is tattooing a bodily injury?
A tattoo „goes under the skin“ and therefore constitutes an intentional bodily injury in the sense of § 223 of the German Criminal Code (StGB).
Ouch! But do not immediately cry out now, dear tattoo artists. A physician does not fare any better. A medical intervention, for example that of a surgeon, also fulfills the legal elements of a bodily injury.
However, it is not illegal and therefore not punishable if covered by the consent of the person concerned.
But be careful, the consent must itself be effective.
There are reservations about the effectiveness of consent if the person concerned was under the influence of alcohol or drugs at the time of consent. In this respect, the degree of intoxication will be decisive.
In the case of minors, the consent of the legal representative, i.e. as a rule the parents, is (also) required.
2. What if the tattoo is not like you wanted it?
The agreement to produce a tattoo is usually a contract for work (§ 631 BGB).
According to this, the tattoo artist must perform the work, i.e. the tattoo, free of defects (§ 633 BGB). What is defect-free or, conversely, defective, depends on the specific agreement. And of course also on whether the performance meets the usual craft and hygienic requirements.
In the event of defective performance, the party concerned is entitled to the usual remedies (§§ 634 ff BGB). He or she can thus demand rectification, price reduction and/or compensation for damages.
A reversal, on the other hand, thus "money back, tattoo back", would be difficult.
3. Tattoos and Copyright
Tattoo motifs can be protected by copyright. This is the case if they have a certain "creative value" or "Gestaltungshöhe", that means if the tattoo is a personal intellectual creation in the sense of § 2 paragraph 2 UrhG.
Simple hearts or stars based on a template are generally not works protected by copyright.
However, there are of course much more complex motifs for which copyright protection is certainly possible. In such a case, the following applies:
a) Tattoo artist/original copyright holder
The tattoo artist must ensure that his work does not infringe on the rights of others. Tattooing another artist's copyrighted work under the skin of a customer may therefore constitute a copyright infringement.
In this context, the right of so-called free use (§ 24 UrhG) is sometimes invoked. One speaks of free use when the personal features of the original work fade and those of the new artist become predominant.
Sometimes it is also argued that the transfer of a work into another genre of work already constitutes a free use per se. I have my doubts about this and would rather reject this view. The adaptation of a novel (book / film), for instance, is clearly not recognized as free use.
Therefore, the tattoo artist should always make sure that he/she does not use any other copyrighted works.
To be exempted by the customer internally is better than nothing, but of course does not provide absolute protection. Because an exemption works only vis-a-vis the customer. If the tattoo artist is legally prosecuted by the copyright owner because of the copyright infringement he committed, then he cannot defend himself by arguing that the customer wanted the tattoo, or that the customer has signed a declaration of exemption. This would only be relevant for a recourse of the tattoo artist against the customer.
b) Tattoo artist / customer
And what about the legal relationship tattoo artist / customer? Let's assume that the tattoo artist has created his own copyrighted work through his tattoo. Does this copyright then pass to the customer?
Yes and no. This is basically the same as with a picture. The customer becomes or remains of course "owner of his own skin", under civil law the tattoo belongs to him (§ 903 BGB).
The copyright to the work, however, remains with the artist, in this case, the tattoo artist. The customer therefore does not automatically receive, for example, the right to photograph the tattoo and exploit it commercially. Basically, the customer would not even be allowed to change or destroy the work without first asking the tattoo artist; because edits and transformations require the consent of the author according to § 23 UrhG. Here, however, in my opinion, one can and must assume an implied agreement between tattoo artist and customer, according to which the tattoo artist allows the customer from the outset to remove the tattoo later or to have it removed.
But there are also more complex cases. Consider the "full body tattoos" of a media star like Justin Bieber. Insiders probably know from whom he got his tattoos. If Justin Bieber now decides to have the tattoos of Tattoo Artist 1 revised by Tattoo Artist 2, so that one no longer knows in the end who has made which contribution, then the rights of Tattoo Artist 1 may well be affected. Because he may not like the revisions of his successor and does not want them to be attributed to him by the "community".
So tattoos and copyright, that is, as we lawyers like to say, an "exciting" topic.
4. May an applicant in the public service be rejected because of a tattoo?
You are probably familiar with the rulings of the Berlin courts on whether it is permissible to reject a police candidate solely because he or she visibly wears a tattoo, for example on the arm.
Here, the case law goes in the direction of saying: Tattoos have arrived "in the middle of society". So a police candidate may not be rejected solely because of a neutral tattoo.
But there are of course borderline cases conceivable.
For one thing: If the tattoo is not value-neutral, but, for example, expresses a certain attitude, then this can of course justify a rejection. Think for example of a swastika tattoo. Of course, such a tattoo is not acceptable, at least not in the public sector.
In my opinion, one must also pay attention to the specific function of the office holder. Imagine the presiding judge of a higher criminal court wearing a face tattoo in the style of Mike Tyson. As far as we know, such a case has not yet become practically relevant, but just imagine it. In my opinion, such a publicly displayed tattoo could well affect public confidence in the administration of justice. What will the victim of a violent crime think if the defendant and the judge have the same tattoo on their face?
On the other hand, of course, one must be careful. If the defendant and the judge are both bald, this will probably not justify a rejection on grounds of bias. ...
For me, the topic of tattoos shows very nicely that views on what is acceptable or even cool change over time, and quite considerably.
I would say: Tattoos are a trend that will pass. It's probably the same as with haircuts: Today, people (again) wear their hair long in the front and short in the back. At least when there's still enough of it in the front. And not the other way around (mullet), as in the eighties.
Watch out, in 30 years your granddaughter will call out to you in dismay: "Grandma, what's that scribble on your arm? Didn't you have any paper (or iPad) to draw on back then? ...
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law
The fashion label that now all of a sudden also makes watches. Or eyeglasses. Or even perfume. Boots that are sold with the name of the producer of bulldozers. And the brand of one or even several sports car manufacturers is apparently also very well suited for the sale of sporty, elegant sunglasses.
1. The Idea: Image Transfer
In all these cases, the positive image of a well-known brand is to be transferred to another product which is not manufactured by the owner of the well-known brand (image transfer). - For more details see section 5 at the end.
2. The Implementation: Trademark Licenses
As a rule, this is based on a trademark license agreement. Because the clothing producer (Hugo Boss, Esprit, s'Oliver and so on) usually knows little about how to produce watches, glasses or even perfume. But he – or she, of course - has made a good name for himself/herself in his/her segment, namely clothing, and he/she is now turning this into money by granting a manufacturer of watches, eyewear or perfume the right to label his/her products (watches, eyewear, perfume) with the famous name of the clothing manufacturer. - (I think you get the idea: Gender is not the topic here).
3. Legal Concerns?
But isn't this deceiving the consumer? Doesn't he assume that the clothing producer has also produced the watches, the glasses and the perfume? But no, don't be so naive!
Trademark license agreements are absolutely legitimate arrangements in which one side contributes the product and the other the famous name.
4. Content and Structure of a Trademark License Agreement
Are you interested in what is covered in such an agreement? Well, let's take a closer look at the content and structure of a trademark license agreement.
a) The Parties
The licensor is the party that owns the trademark rights to a well-known name (Hugo Boss, Esprit, s'Oliver, to name just a few).
On the other side is the licensee. This is, for example, a manufacturer of watches, glasses or perfume, who usually does not have such a well-known name. But he knows how to produce (high quality) watches, glasses or other products.
b) The Trademarks
The subject of a trademark license agreement is a trademark. This can be, for example, an EU trademark or a German trademark.
It is important that the licensor must actually be entitled to the trademark right. This is because a license is a right, and a right can only be transferred by the person who is actually the right holder. Unlike the acquisition of an object in good faith (§§ 932ff BGB), the acquisition of a right in good faith is not possible.
The licensee is therefore well advised to have the licensor expressly prove and assure the existence of the right. It also does no harm to carry out one's own searches, for example in the trademark register. If the licensor is not entitled to the trademark, the licensee cannot acquire a license to it. Not even if he has paid all license fees (see below) and has fully trusted the licensor.
c) Exclusive versus non-exclusive License
A license may either be granted to only one licensee. In this case, it is referred to as an exclusive license.
However, it is also possible for the licensor to grant non-exclusive, simple licenses to several licensees in each case.
In the case of an exclusive license, it is advisable to clarify whether the licensor himself may continue to make use of the trademark or not.
Licenses may be granted either for the entire territory where they are valid or for a part thereof. In the case of an EU trademark, for example, a licensee may be granted a license for the entire EU or only for individual countries. In this way, the licensor may grant different territorial licenses, one for example for Germany and/or Austria, another for France and/or Italy and/or Spain and so on. ...
It is also important to specify for which products (or services) the license is granted. So for example for eyeglasses or watches or perfume.
A licensee who has received a manufacturing and distribution license for eyeglasses may therefore (only) manufacture eyeglasses and affix the licensed trademark to them. However, he may not use the trademark for other products.
It is also important to contractually agree on the term of the license. This can be three years, five years or 10 years. An unlimited license is also possible; in this case, however, a period of notice (of termination) sould be agreed upon.
g) License Fees
In return for granting the licensee the right to use its trademark in a certain territory for certain goods or services (subject matter of the agreement), the licensor naturally wants to be remunerated with a license fee.
This can be agreed as a lump sum. However, it is more common to link the license fee to the turnover that the licensee achieves with the licensed products. Or to the number (quantity) of products that the licensee sells (so-called per-unit license).
It is also not uncommon to agree on a certain minimum amount (minimum license). This is because the licensor naturally has an interest in the licensee making every effort to generate sales with the license. This applies particularly if no lump sum has been agreed for the license.
What else do you agree upon in a license agreement?
Here are a few keywords: quality control, license notice, accounting, taxes, liability, termination, settlement after termination of the contract, non-compete clause, confidentiality, etc.
As with other (international) contracts, it is common to stipulate that the contractual relationship is governed by, for instance, German law (choice of law clause) and that in the event of a dispute, the courts at a certain location (place of jurisdiction) shall have jurisdiction. Alternatively, you can agree to arbitration if you wish.
These are the key points that can be found in a trademark license agreement.
5. Economic Interests of the Parties
Let us return to the economic considerations of the parties involved.
The licensee could, of course, market his products under his own name. But hardly anyone knows this name. Therefore, he looks for someone who has the trademark rights to a well-known name that is well received by consumers.
The licensor, for his part, has an interest in receiving money simply for making his brand name available to another company. Indeed, the licensor does not have to do much more than that. In particular, he does not have to produce eyeglasses, watches or perfume, but it is sufficient that he has a well-known brand name and allows another company to use this brand name for its products.
All right, the licensor still has one interest: It is very important to him that his brand is not damaged by inferior products. That's why he usually makes a point of only granting a trademark license to companies that, for their part, manufacture products of impeccable quality. Otherwise, this could have negative consequences for the brand's reputation and thus also for the licensor's core business.
And so the circle closes: Because the licensor wants to protect his good name, he generally only grants a license to trustworthy licensees who manufacture good products. In this sense, the licensor's good name indirectly stands for the quality of the products, even if they do not actually come from the licensor's company.
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law
Some people pay millions for it, for example for a work by Banksy, and for others it is simply trash. We are talking about street art, often also called graffiti. Let's take a look at the legal questions that arise in this context.
1. Is Street Art really Art?
Is street art really art? Interesting question, but let others worry about that. Art critics, for example, or art experts - or those who think they are.
a) Legally, i.e. from the point of view of copyright, it does not matter whether something is "art", but it is sufficient if it is a "protected work" in the sense of § 2 UrhG. This is understood to mean a "personal or individual intellectual creation".
And what is a "personal or individual intellectual creation"? Good question. The UrhG does not say. Case law and legal experts have agreed, if you like, that it depends on the "individuality" of the creation, on the "level of creation". Doesn't help you much now, does it? I can understand that.
So further: The central criterion is "individuality". The individuality of the author must be expressed in the work. Purely technical achievements, which anyone with average skills could also produce, are not sufficient. Nor is it sufficient that something was very time-consuming or involved special effort or expense. Routine performances and thus the "mass of everyday creations" are not protected by copyright.
Protected works do not necessarily have to be "beautiful"; there are also butt-ugly works. "Individual" is rather the magic word here. A work should be the expression of an individual character, it should be creative, convey an individual message. ...
b) In a ruling from 2015, the Regional Court of Munich I (ZUM 2015, 423) awarded a graffiti that consisted of letters the quality of a work on the following grounds:
"The graphic design of the letters ... is a personal, individual creation. When looking at the letters, the inclination, the elongations ... and the loop at the end are particularly striking. Overall, the letters to be judged here are characterized by a playfully sweeping aesthetic (see also Higher Court of Munich, decision of 16 July 2014, Az 29 U 4823/13). ..."
c) "Playfully sweeping aesthetic". Well then. Are you smarter now? No. Never mind. Even lawyers and courts often disagree on whether a particular "work" is copyrighted or not. The boundaries are blurry. What one person considers to be ingenious is just meaningless everyday crap to another. Just like with art.
2. Is it allowed to simply wash off or paint over Street Art/Graffiti?
Let's assume that the "painting" you found on the wall of your house one morning fulfills the definition of a protected work and is therefore protected by copyright. Do you then have to tolerate it or are you allowed to remove it, for example by washing it off?
a) Legally, we have a conflict here between the copyright of the creator of the work, i.e. the street artist, and the property right of the house owner.
b) The creator of a work has the sole right of exploitation according to § 15 ff UrhG (reproduction, distribution, etc.). In principle, he can defend himself against any distortion, alteration or destruction of his work (§§ 14, 39, 62 UrhG).
c) Conversely, the owner of the house does not have to accept impairments of his property (§ 903 BGB) and can demand that a disturbance or damage to his property be removed or reversed (§ 1004 BGB).
d) As a rule, this conflict is resolved by a balancing of interests to the effect that the property right takes precedence. This is justified by the fact that the graffiti artist "imposed" his work on the house owner, so to speak. The owner did not want his house wall to be painted with graffiti. Therefore, he can now demand that the painting or writing be removed, or take the scrubbing brush himself. The copyright has to give way to the right of ownership.
I assume that most of you would have seen it the same way instinctively or from your sense of justice.
3. Is it allowed to take Pictures of Street Art and even to exploit them commercially?
a) If you stroll through the Barri Gòtik in Barcelona - or Barrio Gotico, as we like to say in our school Spanish - you will find quite interesting examples of street art in various corners. Are you allowed to simply photograph these works?
Yes, you may. Section 59 of the Copyright Act (Works in public places) gives you the right to do so. This is called „freedom of panorama“ (more on that in a moment).
(Well, maybe we should move our example case from Barcelona to Berlin-Kreuzberg after all, so that we don't have any problems with the application of the German UrhG. Copyright law is strongly harmonized in Europe, but I couldn't tell you offhand where exactly the freedom of panorama is anchored in the corresponding Spanish law).
b) Would you be allowed to produce postcards from your photos and sell them?
Yes, you are allowed to do that as well. The BGH (German Federal Court of Justice) stated in this regard in its decision on the East Side Gallery (GRUR 2017, 390):
"The provision of Section 59 (1) sentence 1 of the Copyright Act not only permits the taking of photographs of a work that is permanently located on public paths, streets or squares, but also the - also commercial - reproduction, distribution and public display of the photograph."
And in a decision involving the painting of a ship, the Cologne Higher Regional Court (WRP 2016, 274) ruled:
"A work attached to the exterior of a sea vessel may be reproduced and made available to the public pursuant to Section 59 of the Copyright Act."
The freedom of panorama (works in public places) therefore gives you the right to photograph street art, graffiti and other works that are (permanently) located on public streets or squares and also to commercially exploit your photos.
c) But, so that we do not misunderstand each other here: The freedom of panorama only applies in public spaces, not in a museum, not at an opening, and not in a private backyard. Whether you are allowed to take pictures there is decided by the owner of the house. And if you first have to climb a ladder to be able to photograph a house over a wall, then this is also no longer covered by the freedom of panorama. I'm just saying, so you don't get any stupid ideas. ...
4. Conclusion: It's not easy for (Street) Artists
Street art can be art or a copyrighted work, but it does not have to be. It depends on the circumstances of each case.
In relation to the building owner, on whom the street artist imposes his art without being asked, the sprayer regularly gets the short end of the stick. The owner may remove graffiti without further ado, without infringing the graffiti artist's copyright.
In other words, even if street art is art in individual cases, the owner may "remove" it. The spraying of other people's house walls or subway cars can even have a criminal component (§ 303 StGB, damage to property).
As an artist, it's not easy.
Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law