200 Years of Photography – The Path of Copyright Protection in Germany

The first photograph in the world.

It took eight hours to capture the world’s first surviving photograph. Taken by Joseph Niépce around 1826 from his study, it shows the courtyard of his apartment. The photograph was created using a combination of a “camera obscura” and a tin plate coated with lavender oil and dissolved natural asphalt. In Germany, 11 years later in 1837, mineralogist Franz Kobell produced the first German photograph of Munich’s Frauenkirche. Needless to say, much has changed since then. Copyright law, too, has evolved up to the present day. This was the long journey of photography to becoming a copyright-protected work.

Uncharted Territory: Photography’s Early Days

Despite the first German photograph in 1837 and the commercialization of photography in 1839, German lawmakers waited until 1865 before photographs were granted any form of protection under the “Bavarian Law for the Protection of Copyright in Literary Works and Works of Art.” In the early days of photography, it was regarded primarily as a technical process, not as an art form. This was likely also due to the fact that scientists, in particular, were using this new technology and were not particularly concerned with artistically staged motifs.

Moreover, the production of photographs was technically very complex at the time, and no standardized process had yet been established. Under the new law, photographs were protected only if they could be regarded as works of art. This conception of photography as a new art form—but not the fundamental need for protection—was increasingly called into question with the rise of new photographic processes that simplified the production of copies.

Consequently, the “Law Concerning the Protection of Photographs Against Unauthorized Reproductions” relaxed the artwork criterion in 1876. For the first time, the law protected photographs regardless of their creative content. However, this protection lasted only five years from the date of creation.

In 1907, the KUG was enacted, marking a further development in the perception of photography as an art form. The KUG equated photographs with other art forms for the first time, establishing photography as a form of work. However, this was not reflected in the legal consequence of the term of protection. This remained limited to 10 years.

Between Neighboring Rights and the Nature of a Work

Historically, therefore, a distinction emerged early on as to whether photographs constitute a work protected by copyright or whether they are merely subject to neighboring rights.

A neighboring right applies to performances that, while not meeting the requirements for a work under the Copyright Act—and thus not considered “personal intellectual creations”—are of decisive importance for the dissemination of the work and, given their intangible nature, appear similarly worthy of protection. For example, performers in a play are granted their own neighboring right to the performance, even if the performance itself does not qualify as a work.

The legislation primarily justifies this protection on the basis of certain personal performances or economic, organizational, and technical contributions.

The main consequence of the distinction between neighboring rights and copyright is the differing terms of protection. While copyrights in Germany today expire only 70 years after the author’s death, neighboring rights generally expire earlier. The decisive point in time for the start of the term is not the author’s death, but rather, for example, the publication of a photograph.

More on the topic of neighboring rights:

Wann im Urheberrecht die Schutzfrist abläuft (und wann Leistungsschutzrechte Vorsicht nötig machen)

Georg Fischer

Der Start eines neuen Jahres ist urheberrechtlich etwas Besonderes: In Deutschland sind seit dem 1. Januar 2023 alle Werke gemeinfrei, deren Urheber*innen im Jahr 1952 (also vor 70 Jahren) gestorben sind. Doch Obacht: Leistungsschutzrechte können die Gemeinfreiheit von späteren Werkaufnahmen oder -aufführungen hinauszögern. » mehr

Photos today: Photographs versus photographic works

Even today, copyright law distinguishes between simple photographs and photographic works.

Photographs—that is, photos that do not meet the requirements for a work—are protected for 50 years after their publication or creation. In contrast to copyright protection, it is the technical achievement that is protected here. Thus, such photos are subject to a neighboring right. However, the requirements for technical achievements are by no means as high as they were in the early days of photography. Today, anything that is not merely a photocopy can potentially be granted a neighboring right as a photograph.

Prominent examples of photographs include museum photographs, but satellite photos or selfies may also fall under this category.

More on the topic of photographic images vs. photographic works:

Lichtbild vs. Lichtbildwerk – wo der Unterschied liegt

Maya El-Auwad

Wann erreicht ein Lichtbild die sogenannte „Schöpfungshöhe“ und genießt damit urheberrechtlichen Schutz als Werk? Über einen kleinen, aber feinen Unterschied im Bild-Urheberrecht. » mehr

First photography, then research data and AI?

Like many other modern art forms, photography had to earn its place among works worthy of protection. Today, very few would likely question the classification of photography as a form of artistic work. Here, supported by technological and societal developments, a shift in awareness has taken place. It remains to be seen whether such a shift within copyright law can also occur for other forms of creation involving the use of artificial intelligence or in favor of research data not yet protected. It is true that copyright law also protects, in part, not creative but technical or economic works. Specifically, this applies not only to photographs but also to databases. This may lead to calls for a progressive expansion of copyright law. However, the need for protection of a particular work should not necessarily always be sought in copyright law, as this law—despite some softening in certain areas—is still primarily intended to protect creative works.

Lea Singson ist Redakteurin bei iRights.info. Sie ist ausgebildete Volljuristin und Expertin auf dem Gebiet Immaterialgüterrechte und Datenschutz. Sie ist außderdem als Wissenschaftliche Mitarbeiterin im Bereich Immaterialgüterrechte am FIZ Karlsruhe tätig.