German Federal Court Rules on Artist's Moral Rights in Destruction of Works

The German Federal Court of Justice (BGH) issued three rulings on February 21, 2019, addressing whether the destruction of an artwork violates the artist's moral rights under German copyright law. The cases involved the removal of two installations for a minigolf course (case I ZR 15/18) and the threatened destruction of two installations by Nathalie Braun Barends, known as Petsire, during renovations at the Kunsthalle Mannheim (cases I ZR 98/17 and I ZR 99/17). The BGH held that while the law protects the artist's intellectual and personal interests, including preventing derogatory treatment, it does not generally guarantee the work's physical existence. The court emphasized a balancing of interests, considering factors such as the work's originality, uniqueness, and whether the artist had the opportunity to reproduce it. In these cases, the property owners' interest in modifying their buildings prevailed, but the outcome might differ if contractual agreements had been made. The decision underscores the need for artists, museums, and collectors to contractually address potential removal, restoration, or destruction of artworks.