Dear all,
Unfortunately, we have some bad news to share. The Landgericht Berlin, the
German trial court in the Reiss-Engelhorn Museum (REM) of the City of
Mannheim v. Wikimedia Foundation case, has ruled in favor of REM. The case
involved a request to take down several pictures hosted on Commons as
public domain (most famously the portrait of Richard Wagner) that had been
taken by a photographer employed by the museum. The museum claimed that the
photographs taken by their photographer were copyrighted even though they
were faithful reproductions of public domain works. We argued that the
works contained no originality and not enough effort to justify even a
limited German copyright, and further that the Museum’s rules prohibiting
photography while claiming copyright on their pictures was effectively an
attempt to create new copyright in works that belong to the public. The
court held that the photos taken by the museum’s photographer are subject
to German copyright protection, similar to any mobile phone snapshot
regardless of the subject, and, therefore, are not in the public domain in
Germany.
We think that the court reached the wrong conclusion and did not properly
consider the harm of this holding on the public domain in a world where
people experience and discover their culture online. Therefore, we plan to
appeal the case to the Kammergericht Berlin, the next - but not yet final -
level of appellate court above the Landgericht. The final level of appeal
could then be the so called “revision” at the Bundesgerichtshof (BGH),
Germany’s Supreme Court - if the Kammergericht or BGH actually allow this
kind of appeal.
However, there is some good news as well. The case against Wikimedia
Deutschland, which was sued as part of the same case as the WMF, has been
dismissed with the court properly understanding that it cannot force WMDE
or its members to make changes to Wikimedia Commons.
With regard to the images themselves, the WMF continues to be of the
opinion that we have the legal right to host the images on Commons for two
reasons. First, we respectfully believe that the German court erred in its
reasoning, which is why we’re appealing. And second, even if the pictures
are considered to be copyrighted in Germany, the WMF continues to stand by
our legal position that they are in the public domain in the United States,
as explained on the PD-Art page
<https://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag#The_U.S._case_of_Bridgeman_v._Corel_.281999.29>.
As such, we believe that the decision whether to keep the images in
question remains with the community in light of this ruling. We will
continue to support that decision, regardless of what the community chooses
to do.
However, we would like to note that the community may want to update the
tags used on the pages for the REM images, so that users in Germany have
some warning that the trial court has ruled that they do not have
permission to use the pictures there.
For more on this, please see the discussion on Commons
<https://commons.wikimedia.org/wiki/Commons:Village_pump/Copyright#Info_about_Reiss-Engelhorn_Museum_.28REM.29_of_the_City_of_Mannheim_v._Wikimedia_Foundation>
as well.
Best,
Jacob
--
Jacob Rogers
Legal Counsel
Wikimedia Foundation
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