Guest Author: Fabienne Graf (LL.M. candidate at Duke University School of Law)
Recently, while reminiscing of past in-person strolls through art exhibitions and museum experiences, many of us may scroll through snaps or stumble upon posts online. Against this backdrop, the question whether or not museums can legally prevent their visitors from taking photos and posting them on the Internet remains as topical as ever.
This question cannot be answered with a bright-line rule. Albeit a global phenomena, the evaluation of whether or not to uphold photography bans is set against differing cultural and legal norms.
In 2018, referencing its own case law, the German Federal Court of Justice established that if a museum prohibits photography, visitors may not take their own pictures of paintings and place them on the Internet. The Reiss-Engelhorn Museum (REM) in Mannheim had sued after a man scanned pictures from the museum's catalogue and published them on Wikipedia. In doing so, the man violated the publication right of copyright law – but was lucky to find the photos now in the public domain due to the expiry of the German blocking period of 70 years. The man also photographed paintings at the exhibition, despite signs clearly prohibiting photography. He posted the photographs in the central media archive Wikimedia Commons. In violating the prohibition on photography, the man breached the contract he entered in upon his visit.
The German Federal Court of Justice upheld a comprehensive ban standing in harsh contrast to a multitude of more forgiving policies. The Metropolitan Museum of Art in New York, for example, approves and even encourages visitor photography. In its visitor guidelines, it states that "unless otherwise indicated, you may take photographs for personal use." Yet, what constitutes personal use remains implicit.
However, it is not only the local law that adds complexity. The question rather raises further considerations regarding policy development as well as societal concerns about the individual experience of art and its sharing practices. All these points go beyond what both black letter law and renowned courts consider as of today.
Therefore, the legal development concerning the thesis question is also not limited to asserting or discarding strict bans. As the U.S. case of Bridgeman Art Library v. Corel Corp., (S.D.N.Y. 1999) shows, further considerations of copyright (reforms) are evident. Here, observing moral rights and attributions becomes inevitable.
From the societal policy and cultural perspective, the initial question should be rephrased into whether or not museums should prevent their visitors from taking photos and posting them on the Internet. Here, the considerations are very different to the legal perspective of omitting conflicting rights and holding up black letter principles.
From a visitor-perspective, one has to consider, first, the implications for the individual art experience. This was even recognized by the German Federal Court of Justice, although the line of thought remained a side note and was not further reasoned with in the ruling. Second, the institutional perspective of the museums calls for the best possible conditions for promoting, cataloging, and preserving art entrusted to their collections and exhibitions.
These stakes are met with the omnipresence of smartphones and tiny high-resolution cameras as well as the demand for immersive experiences. For museums, the question might therefore, break down to concerns of practicability and feasibility. Some have policies to only restrict certain more high-risk features and practices such as selfie-sticks or tripods remain. However, when a policy-based ban is omitted easily and noncompliance becomes the norm, one has to ask whether it might be a more straightforward approach to allow photography altogether.
An additional perspective is added through the people participating indirectly by following through online posts. This perspective goes beyond the temporal limitations of the museum visit and its local photographic actions. It expands into social media spheres, controlled by third parties and subject to further sharing – further and further removed from the initial art experience.
On the one hand, this expansion in participation amounts to an expansion in the museum's reach and therefore ideally generates new prospects for art communication. On the other hand, the individual museum experience – once only lasting and fleeting personal memories – has now become a standardized commodity manifesting in shared digital photography. These are the realms that should be further explored by art law and its neighboring interdisciplinary studies.
 Court of Justice, Germany, March 1, 2013 - V ZR 14/12 – Sanssouci II.
 Court of Justice, Germany, December 20, 2018, Az. I ZR 104/17.
 Court of Justice, Germany, December 20, 2018, Az. I ZR 104/17, at 8-9.
 Court of Justice, Germany, December 20, 2018, Az. I ZR 104/17, at 4.
 Court of Justice, Germany, December 20, 2018, Az. I ZR 104/17, at 18-19.
 As personal use only implies non-commercial use.