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. 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 as well. 

Best,

Jacob

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Jacob Rogers

Legal Counsel

Wikimedia Foundation

NOTICE: This message might have confidential or legally privileged information in it. If you have received this message by accident, please delete it and let us know about the mistake. As an attorney for the Wikimedia Foundation, for legal/ethical reasons I cannot give legal advice to, or serve as a lawyer for, community members, volunteers, or staff members in their personal capacity. For more on what this means, please see our legal disclaimer.

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