The First Civil Senate of the Federal Court of Justice, which is responsible for copyright law among other things, has ruled in three appeal proceedings that the use of images of a photo wallpaper on the Internet does not infringe the rights to the photographs printed on the wallpaper that are protected under copyright law.
Facts:
The plaintiff is a company founded by a professional photographer that markets photographs taken by the photographer as photographic wallpaper.
The defendant in proceedings I ZR 139/23 purchased a photo wallpaper via a website on which a photograph is printed to which the plaintiff claims rights. The defendant had the wallpaper installed on a wall in its house. The wallpaper could be seen in the background of several videos on its Facebook page.
The defendant in proceedings I ZR 140/23 operates a web and media agency. It posted a screenshot of the website it had designed for a tennis center on its own website. The screenshot shows the guest room of the tennis center with a photo wallpaper, the image motif of which the plaintiff claims the copyrights.
The defendant in proceedings I ZR 141/23 used a photo wallpaper with a picture motif, to which the plaintiff claims rights, as wallpaper in a room of the hotel operated by him. The wallpaper is recognizable on a photo with which the defendant advertised its services on the Internet.
The plaintiff is of the opinion that the images of the photo wallpapers in photos and videos on the Internet infringe the rights of use granted to it by the photographer to the photographs printed on the wallpapers. It has claimed damages and reimbursement of warning costs from the defendants in all proceedings and, in proceedings I ZR 141/23, additionally claimed information about the scope of use of the photograph.
Process history so far:
The local court dismissed the claims. The plaintiff's appeals were unsuccessful. The plaintiff continues to pursue her claims with the appeals allowed by the Regional Court.
Decisions of the Federal Supreme Court:
The plaintiff's appeals were unsuccessful.
The claims for damages, reimbursement of warning costs and the provision of information based on Section 97 (1) and (2) UrhG, Section 97a (3) UrhG and Section 242 BGB are unfounded because the infringement of the reproduction right and the right of making available to the public carried out by the defendants was justified - as the Court of Appeal rightly assumed - on the basis of the author's implied consent.
Whether the conduct of the authorized person is to be regarded as simple consent to the infringement of a right protected by copyright law depends on the objective content of the declaration from the perspective of the recipient of the declaration. The decisive factor here is whether it concerns acts of use that are customary in the circumstances and that the authorized party must expect if he makes his work freely accessible to users without restrictions.
In all proceedings, the Court of Appeal assumed in a legally correct assessment of the facts and in accordance with life experience that the reproduction by taking photographs and video recordings in rooms decorated with photomurals and the posting of these photographs and videos on the Internet - both for private and commercial purposes - is common practice and was therefore within the scope of the contractual use of the photomurals that was foreseeable for the author. The author is free to contractually agree restrictions on use in the context of distribution and to point out such restrictions - for example by attaching a copyright notice or a reservation of rights - in a way that is also recognizable to third parties. This was lacking in the cases in dispute.
The Court of Appeal rightly assumed that the web and media agency claimed against in proceedings I ZR 140/23 could also rely on effective implied consent. The validity of a consent does not require that it is declared to the person who interferes with copyrights. What is sufficient is conduct on the part of the authorized party which, from the perspective of an objective third party, has the significance that the authorized party permits the encroachment on its legal sphere. It is not only buyers of photo wallpapers sold without restrictions who decorate their rooms with them, take photographs and video recordings of these rooms and post them on the Internet who can rely on the author's implied consent to the reproduction and making available to the public of the photograph used for the photo wallpaper. In fact, third parties can also rely on the implied consent of the photographer if their acts of use can be considered customary from an objective point of view.
The Federal Court of Justice also approved the assumption of the Court of Appeal in all proceedings that there are no claims for infringement of the copyright naming right pursuant to Section 13 sentence 2 UrhG because the author waived this right by conclusive conduct in the context of the distribution of the photomurals.
Lower courts:
in proceedings I ZR 139/23
Düsseldorf Regional Court - Judgment of September 27, 2023 - 12 S 23/22
AG Düsseldorf - Judgment of December 13, 2022 - 13 C 65/22
in proceedings I ZR 140/23
Düsseldorf Regional Court - Judgment of September 27, 2023 - 12 S 24/22
AG Düsseldorf - Judgment of December 13, 2022 - 13 C 62/22
in proceedings I ZR 141/23
Düsseldorf Regional Court - Judgment of September 27, 2023 - 12 S 25/22
AG Düsseldorf - Judgment of December 13, 2022 - 13 C 64/22
Judgments of the BGH dated September 11, 2024 - I ZR 139/23; I ZR 140/23; I ZR 141/23
Source: Press release of the BGH No. 179/2024 of 11.09.2024
