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Construction law: Architectural artwork can be removed without compensation

If a building with a work of art is to be demolished, a balance must be struck between the interests of the client and the artist. As a rule, the client's interests take precedence (BGH, judgment of February 21, 2019, I ZR 98/17).

The case

An artist provided a museum with a permanent spatial installation spread over several floors. Part of the installation consisted of stacked openings in the ceilings, through which a beam of light passed. After a few years, the museum operator decided to replace the more than 30-year-old museum building with a new building. In the process, the artwork was to be completely removed. The operator wanted to hand over the parts of the installation that could be dismantled to the artist. The parts that were firmly connected to the building were to be demolished in the course of the construction work. The artist saw this as a violation of her copyright and sued the museum operator for an injunction or restoration, or alternatively for damages.

The consequences

The applicant failed. The Federal Court of Justice clarified that the work is a work eligible for protection (Sec. 2 (1) No. 4, (2) UrhG ("Copyright Act")). These works are protected according to Section 14 UrhG against distortions or other impairments which could endanger the legitimate intellectual or personal interests of the author in his work. Thus the destruction of the work would not be permitted. If, however, the work of art is the property of another person and the latter wants to proceed with it in a way that impairs the work, then the interests of the owner and the author must be weighed against each other. In the case of works of architecture and works of art that are inseparably connected to buildings or related to land, the interest of the owner takes precedence if he wishes to use his land for other purposes or to build on it and the associated work is thereby destroyed or removed. Only in individual cases can other provisions apply. When weighing up interests, it is important whether the author had the opportunity to document the work and, if possible, to make copies.

What is to be done?

If building owners are faced with the question of how to deal with works of architecture or other works of art that are firmly connected with the existing building when planning conversions or new buildings, the ruling of the Federal Court of Justice now stipulates how to behave. Their interest in the use of land has priority. But they must give the art author the opportunity to document his work and, as far as possible, take it back or make copies. When planning the measures, building owners should involve the artists concerned at an early stage. In this way, disputes can be avoided which can ultimately delay the implementation of the project.

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