Supreme Court 04.04.2024, 4 Ob 52/24m
Which photographic works are protected by copyright? Does the photograph have to be a completely independent work or is the artistic modification of an existing work sufficient for the newly created work to be protected in its own right? Photography is much more than simply capturing moments - it is an art form that combines the photographer's creative vision and technical skills. The "click of the shutter" is the result of a - usually - conscious decision about angle, lighting and image composition. Every such intellectual creation deserves recognition, or at least (copyright) protection. Whether it is an iconic portrait, a depiction of a breathtaking landscape or, as recently decided by the Supreme Court, an accurate copy of a historic postcard - the photographer's creative achievement is protected and honored by copyright.
The case decided by an emeritus scholar and a busy philatelist impressively demonstrates the importance of this protection for the creativity and rights of photographers: The dispute between the plaintiff stamp collector and the defendant scholar arose over a postcard from 1908 that the philatelist had photographed on the occasion of the 90th anniversary of his philatelic club. It was a postcard from the philatelist's collection. The image was published in a commemorative publication. The emeritus scholar then used this image without permission for a book about historical postmarks in Tyrol. The philatelist objected to this and demanded an injunction - the photo of the postcard that he had taken could only be used by him and no one else.
Initially, the regional and higher regional courts in Innsbruck dismissed the philatelist's claim because they were of the opinion that photographing a postcard did not constitute a service worthy of protection. In other words, the photograph - which only shows the postcard - was not a protected work within the meaning of copyright law.
The Supreme Court saw things differently: in its decision 4 Ob 452/24m, it overturned the lower court rulings. According to it, photographing a postcard requires a minimum level of creative activity. Aspects such as location, distance, angle, exposure and image detail are not purely technical but creative decisions that would justify (at least) protection as a "mere photograph". It found that although - due to a lack of originality - there was no "photographic work" with full copyright protection, protection as a "mere photograph" (§§ 73 ff UrhG) was nevertheless justified. The professor must therefore refrain from distributing and copying the book as long as it contains the postcard photo.
The OGH's ruling highlights the importance of copyright protection in the digital and analogue world and is an important precedent. It makes it clear that even seemingly simple photographic works are worthy of protection and that the rights of the authors must be respected.
17.05.2024