Out-Law News 2 min. read

Online photographs of hotel room photo wallpaper can infringe copyright in Germany

Purchasing a photo wallpaper does not automatically include the right to reproduce it on pictures on the internet, the Regional Court of Cologne has decided in a case involving the provider of a holiday flat.

Anyone who purchases a photo wallpaper for their holiday flat or hotel and puts it up in a room does not have the right to make the photo wallpaper publicly available in images of the room on the internet or to reproduce it - unless they have obtained a licence to do so from the copyright holder. This is what the Regional Court of Cologne ruled in its judgement of 18 August 2022 (link in German). The judgment has only now become known to a wider audience.

"Anyone using a photograph for advertising purposes does not only need the permission of the photographer. A licence from the author of the depicted objects may also be necessary," said Ruth Maria Bousonville, an IP expert at Pinsent Masons. "This is often overlooked in practice, yet Germany’s Federal Court of Justice already gave strict direction back in 2014: a licence is required if the depicted object creates the style or atmosphere of the photograph, underlines a certain effect or statement, fulfils a dramaturgical purpose or is characteristic."

In the case in question, the owner of a holiday flat had posted photos of the flat on the internet for marketing purposes. A photo wallpaper was prominently displayed on one of the pictures. The flat owner had purchased the wallpaper in 2013 at a price of €13.50. In 2020, the flat owner received a cease-and-desist letter: the photographer, who held the copyright to the tulip photos used for the wallpaper, considered that his rights to the images had been infringed and demanded the flat owner to stop reproducing the photographs on the internet. The owner of the holiday flat refused to sign the cease-and-desist declaration and the case went to court.

The photographer stated that he had given his permission for his tulip photos to be used for a wallpaper. However, he had only granted a simple right of use, which did not cover publication or reproduction in media such as the internet.

Since the photo wallpaper was prominently visible in the photographs and influenced the effect of the room, the Cologne Regional Court did not assume that the wallpaper was a mere "accessory" within the meaning of section 57 of the German Copyright Act (link in German). This states: "The reproduction, distribution and communication to the public of works is permissible if they are to be regarded as an insignificant accessory alongside the actual object of the reproduction, distribution or communication to the public".

Sven Schulte-Hillen of Pinsent Masons said that the ruling is not only relevant in relation to photo wallpapers, but could also be extended to other furnishing items that create an atmosphere, such as pictures, sculptures or designer furniture. "This means that hotel operators and other businesses in the overnight accommodation sector should include an authorisation clause in all procurement contracts for furnishing items," Schulte-Hillen said.

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