Image Rights for Landscapers: Who Owns the Photo?

Copyright arises with the shot and stays with the person who took it. Under German law it cannot be sold or assigned; it expires 70 years (UrhG) after the author's death. What a business receives when commissioning a photographer are usage rights — permission to use the images to a defined extent. That extent is exactly as large as what was agreed. For everything beyond it, the default is: not granted. Whoever ordered the shots for a trade fair stand has not thereby obtained permission for the homepage.

An agreement with a photographer therefore needs a handful of concrete points, and they fit on half a page. First, scope in space and time: unlimited in both is the sensible choice for a website, because images stay there for years. Second, the media: website, enquiry form, quotation documents, vehicles, print, job ads, social networks. Third, the right to edit, because cropping, colour correction and retouching a house number are alterations to the work. Fourth, whether you may pass images on to manufacturers, suppliers or trade portals — that is a sublicence and has to be stated expressly.

A fifth point is often forgotten: attribution. Photographers have the right to be named as authors and do not waive it silently. For a website that means either a photo credit in the imprint or a small note next to the gallery. If your own team takes the pictures, the question merely shifts: shots made by an employee as part of their duties may normally be used for business purposes — a short written arrangement in the employment contract or an addendum is cleaner. Phone photos taken by the site foreman are, incidentally, often more useful for a portfolio gallery than an expensive production, because they show the build sequence.

Freedom of panorama under Section 59 UrhG is the exception many people invoke without knowing its limits. It allows works that are permanently located on public roads, paths or squares to be depicted and those depictions to be exploited. What is meant are copyright-protected works — the architecture of a building, a sculpture on a roundabout, a designed public green space of note. The shot has to be taken from a generally accessible position, using what a passer-by can see without further ado.

This is precisely where its usefulness for landscaping ends. As soon as someone climbs a ladder, uses a lifting platform, shoots over the hedge or launches a drone, the position is no longer generally accessible. Case law is strict on this point: whatever can only be seen with aids or from the air falls outside the exception. And more importantly, freedom of panorama concerns copyright in depicted works alone. It says nothing about the householder's rights, nothing about data protection and nothing about the rights of the people portrayed.

In practice that means the front garden you photograph from the street is unproblematic in copyright terms. Whether the house number is visible, whether a resident is standing at the window and whether you add the location in the caption are separate questions. For a trade such as paving this is often the most convenient route to good pictures — the driveway faces the street, the frame can be kept tight, and the material takes centre stage. For installations at the rear of a property, freedom of panorama does not help.

Hardly any motif works as well as the overhead view of a finished installation: path layout, bed edges, paving pattern and zoning only become legible from above. At the same time, drones are the area where three sets of rules meet at once. In air law the European requirements for unmanned aircraft apply (European Commission), demanding registration, marking, proof of competence and liability insurance depending on weight and use. Additional restrictions apply above residential properties, and protected areas or the vicinity of airfields have rules of their own.

The second layer is personality rights. An aerial photo shows not only the garden you built but regularly the plots beside it — terraces, pools, conservatories, people. Neighbours have not consented to that shot, and their protected sphere extends beyond the property line. Anyone photographing from the air should therefore keep the frame tightly over their own site and, in case of doubt, work straight down rather than at an angle across the neighbourhood.

The third layer is the one already described: freedom of panorama does not apply to aerial images, because the air is not a generally accessible position within the meaning of the provision. A drone shot therefore requires in every case the owners' release. Anyone working from the air on a regular basis is best advised to include this point in the photo release and have it ticked separately — many clients happily release close-up shots and are far more reserved about aerial views of their property.

A release nobody can find is no release at all. The photo archive therefore needs a simple, consistently applied filing scheme: one folder per project, named by year, month and project, containing the signed releases with their dates, the original files and the versions prepared for the website. Anyone who additionally keeps one line per project in a table — project, release date, released motifs, location may be named yes or no — can answer any query without searching. Two extra columns cost nothing and save half an hour later.

Withdrawal is the case that makes the whole effort worthwhile. Clients sell their houses, employees move on, someone simply no longer wants to appear online — that is their right, and it is usually unproblematic as long as you react promptly. In practice, promptly means: take the image out of the gallery, check the associated quotation templates and job ads, update the entry in your table and delete the file from the web folder. If your site is maintained regularly, this is a matter of minutes rather than a small project.

One last point concerns the after-effects online. Once removed, an image may still appear for a while in search engine caches or in copies on portals. What you owe here is what is reasonable: end your own publication and, where you arranged the distribution yourself, inform the recipient. Anyone who documents image distribution to portals and manufacturers from the start knows in that moment whom to write to. Viktor Waldbauer Garten- und Landschaftsbau from Nordstemmen, for instance, is a genuine client of ours, with work ranging from sand-set slabs and terraces to cisterns and complete garden installations — there too the rule holds: whatever is shown has been agreed beforehand.