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“AIDA Smiling Lips” (AIDA Kussmund)

Decision of the Federal Supreme Court (Bundesgerichtshof) 27 April 2017 – Case No. I ZR 247/15

  1. (a)

    A work is located “on” public paths, streets or spaces if it can be observed from public paths, streets or spaces; it is irrelevant whether the work itself is accessible to the public.

  2. (b)

    Paths, streets or open spaces are “public” within the meaning of Sec. 59(1), first sentence, of the Copyright Act if they are freely accessible to everyone, regardless of whether they are publicly or privately owned.

  3. (c)

    The mention of “paths, streets or spaces” in Sec. 59(1), first sentence, of the Copyright Act is merely exemplary and not exhaustive. The provision in any case encompasses all places that – like paths, streets and spaces – are located in the open.

  4. (d)

    A work is located “on public paths, streets or spaces” within the meaning of Sec. 59(1), first sentence, of the Copyright Act even when it changes its location and the different places at or on which the work is located are public places.

  5. (e)

    A work is located “permanently” on public paths, streets or spaces within the meaning of Sec. 59(1), first sentence, of the Copyright Act if it is located continuously and not merely temporarily in public places. This is the case if the work is, from the point of view of the public, intended to remain in public places for a long, mostly indefinite, period of time.

  6. (f)

    Whoever invokes Sec. 59 of the Copyright Act bears the burden of presenting evidence and the burden of proof that the photograph of the work was taken from public paths, streets or spaces. If the photograph shows a view of the work as it presents itself to the general public from a public space, a presumption of fact indicates that the photograph was taken from such a place. It is then a matter for the proprietor of rights in the work to undermine this presumption by submitting concrete facts. Whoever invokes Sec. 59 of the Copyright Act must then prove his or her assertion.

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Translation by Allison Felmy.

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Copyright Act Sec. 59(1) first sentence. “AIDA Smiling Lips” (AIDA Kussmund). IIC 48, 987–993 (2017). https://doi.org/10.1007/s40319-017-0656-0

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Keywords

  • Public spaces
  • Permanently
  • Paths
  • Streets or spaces
  • Copyright exception
  • Panorama freedom
  • Photographing of a work