Facts and decision of the Düsseldorf Higher Regional Court
A photographer issued warning letters against hotel operators because their hotel images, which were shown on the internet for advertising purposes, featured photo wallpaper created with his image material.
Photographs of hotel rooms designed with photo wallpaper uploaded to the internet
A photographer had licensed his photographs for wallpaper designs, which were then used in a hotel. When the operators of the hotel published photos of the rooms on their website for advertising purposes, the photographer considered this to be an infringement of his copyrights and initially brought an unsuccessful action before the Düsseldorf Regional Court
Düsseldorf Higher Regional Court: No copyright infringement for photos of photo wallpaper
In a judgement dated 8 February 2024, the Düsseldorf Higher Regional Court confirmed the first-instance judgement of the Düsseldorf Regional Court and ruled that taking photos of rooms with photo wallpaper attached and then making these photos publicly available – irrespective of private or commercial purposes – is within the scope of normal use of the wallpaper.
The photographer’s claim was unsuccessful at first instance before the Düsseldorf Regional Court. The Düsseldorf Higher Regional Court stated that the purchase of the photo wallpaper implicitly granted the hotel operator the right to use. It is common and in line with the intended use of photo wallpapers that rooms decorated with them are photographed and these images are posted online. This applies both in a private and business context. The wallpaper is seen as an integral part of the room. It would be unrealistic to expect that no photos are taken in such rooms, or that the wallpaper is covered up in the pictures, or that the photos are subsequently edited to conceal the wallpaper.
… the right to be named has not been infringed either
It was also found that the plaintiff had waived his right to be named since the photomurals had already been distributed without his name being mentioned. The usual use in the digital age also includes the photographic representation of the rooms.
Facts and decisions of the Regional Court of Cologne
In 2022, and most recently in April of this year, the Regional Court of Cologne affirmed copyright infringement in two comparable cases. In the judgement of 18/04/2024 (14 O 60/23), the defendant had a holiday flat and advertised it with photos on the Internet. The photo wallpaper with the “Graphite Stonewall” motif could also be seen in these photos. The managing director of the plaintiff is the author of the photos. In the parallel case (judgement of 11/04/2024, 14 O 75/23), the plaintiff had filed a lawsuit against the master painter who took photos of the wallpapered rooms and used them to advertise his company.
Cologne Regional Court: Copyright infringement confirmed
The Regional Court of Cologne initially denied – unlike the Regional Court and the Higher Regional Court of Düsseldorf – the exception rule of § 57 UrhG (German Act on Copyright and Related Rights). § 57 UrhG allows the publication of the photos if the photo wallpaper was only an insignificant accessory to the photos. The Regional Court of Cologne does not consider the photographed photo wallpaper to be an insignificant accessory. The photo wallpaper is a central element of the photos – both qualitatively and quantitatively.
The Regional Court of Cologne denies an implied grant of rights when purchasing the photo wallpaper. It considers the above OLG decision to be legally unconvincing, as this would lead to “very far-reaching rights of use being granted for a large number of copyright protected objects by the author or rights holder solely through allegedly conclusive behaviour, which can also apparently be sublicensed at will. However, this cannot be reconciled with the doctrine of legal transactions, the doctrine of assignment of purpose or other principles of copyright law.”
The Regional Court of Cologne also disagrees with the Higher Regional Court’s finding that the end customer would expect to have the right to take and publish photos. This need on the part of the end customer cannot lead to an implied granting of the rights of use. This need is rather covered by the exception under § 57 UrhG.
To the point
The decision of the Düsseldorf Higher Regional Court makes it clear that an overly broad interpretation of the rights of use under copyright law is not supported in such cases. However, there is a lack of clarity in the legal situation, as the judgements of the Regional Court of Cologne show. In case of doubt, one should make sure that the rights of use exist to avoid claims for damages. There will certainly be further judgements that will clarify the legal situation. We will keep you posted!
Source: Justiz NRW
OLG Düsseldorf, LG Köln, LG Köln
