Several BGH rulings on the use of photo wallpapers on the internet (BGH, rulings of 11.09.2024, I ZR 139/23, I ZR 140/23, I ZR 141/23) bring clarity to the question of whether copyrights are infringed by the depiction of photo wallpapers in online media. The plaintiff, a company that sells photo wallpapers, filed a lawsuit in several cases because it considered its copyrights to be infringed by the depiction of the photo wallpapers in social networks and on websites.
Several courts rejected these claims on the grounds that the author's consent was implied. This means that the author agreed to the use of the photomurals and the associated public display in photos and videos on the internet as long as no specific restrictions were agreed. These rulings have far-reaching consequences in practice and create legal certainty for buyers and users of photo wallpapers.
Overview
- Copyright infringement photo wallpaperThe reproduction of photomurals on the Internet does not infringe any copyrights.
- Implied consentThe BGH provides for tacit consent of the author in the case of normal use.
- Room for maneuver for usersBuyers can display photo wallpapers in online content without any legal concerns.
- Rights of the authorsAuthors must contractually stipulate restrictions on the use of photo wallpaper.
Legal background
Protection of photographs under the Copyright Act (UrhG)
Photographs are protected by the German Copyright Act (UrhG). special protection. This protection includes the right of reproduction and the right of making available to the public. This means that the author can decide whether and how their works are distributed and presented to the public. With regard to photo wallpapers, it depends on whether the photographs printed on them are recognized as works of fine art, as these enjoy a particularly high level of protection. However, snapshots also enjoy copyright protection.
Rights to photo wallpapers as reproductions of photographs
Photo wallpapers that are based on photographs protected by copyright represent a reproduction of the original. This gives rise to specific rights for the author that allow him to determine how these reproductions are used. However, purchasers of photomurals generally acquire the right to display them on their premises. It becomes problematic when these reproductions can be seen in photos or videos on the internet, which is the subject of many legal disputes.
Implied consent and customary acts of use
The concept of implied consent plays a central role in copyright cases. If the author sells a photo wallpaper to a buyer without restrictions, the BGH assumes that the author has tacitly consented to the usual use, such as installing the wallpaper and depicting it in photos or videos. As long as the author does not impose any special conditions or contractual restrictions, buyers can assume that they may also reproduce their photomurals in online media.
The plaintiff's case: Marketing of photo wallpapers
The position of the plaintiff
The plaintiff in the proceedings is a company founded by a professional photographer. It markets photo wallpapers based on the founder's photographs. The plaintiff claimed that the depiction of these photo wallpapers in videos, photos and online posts infringed the photographer's copyrights, as this was done without his express permission. She claimed damages and reimbursement of warning costs from the defendants.
The use of the photomurals by the defendants
The defendants in the proceedings used the photomurals in different ways: In one case, the wallpaper was installed in a private home and was featured in a Facebook video. In another case, a photo wallpaper was displayed in a tennis center on a website. The third case concerned the use of a photo wallpaper in a hotel that was shown in advertising photos on the internet. In all of these cases, the photomurals had been displayed online without the express permission of the plaintiff.
Claims of the plaintiff: damages and warning costs
The plaintiff not only demanded compensation from the defendants, but also reimbursement of the warning costs. In one of the proceedings, she also demanded information about the scope of use of the photo wallpaper in question. She argued that the depiction of the photo wallpaper in the videos and photos infringed her copyrights and that she was therefore entitled to compensation.
Decisions of the local court or regional court and the higher regional courts
Dismissal of the claims at first instance
The local court dismissed the plaintiff's claims in all three proceedings. It came to the conclusion that the defendants' use of the photomurals did not violate copyright law. In particular, the court saw no infringement of the plaintiff's rights, as there was implied consent from the author. This consent resulted from the fact that the photo wallpapers were sold without restrictions, which gave buyers the opportunity to use them in their online presence.
Confirmation of the judgments on appeal
The court of appeal also confirmed the decisions of the district court. The plaintiff's appeals were unsuccessful. The Court of Appeal found that the use of the photo wallpapers was within the scope of normal acts of use. It could be assumed that the author had to expect that his works would be used in such contexts, especially if no restrictions on sale had been agreed.
Reason: Implied consent of the author
The Court of Appeal based its decision on the fact that the author's consent was implied. This resulted from the sale of the photo wallpapers without restrictions and the associated expectation that the buyers could also reproduce the photo wallpapers in online media. As long as the author had not made any express provisions, tacit consent was to be assumed.
The judgments of the Federal Court of Justice (BGH)
Reasoning of the BGH on implied consent
The Federal Court of Justice confirmed the decisions of the lower courts and emphasized that the author's consent was implied. This consent arises from the fact that the photomurals were sold without restrictions and the author therefore implicitly consented to the usual use. This use also includes the reproduction of the photomurals in online media, as happened in the present case.
The role of common usage practices for photomurals
The customary act of use plays a central role in this case. The BGH argued that it is common practice with photo wallpapers not only to install them in private or commercial spaces, but also to publish photos or videos of these spaces online. As this is a common practice, the author of photo wallpapers can assume that his work will be used in this way.
Rejection of copyright attribution claims
The BGH also rejected the plaintiff's claims regarding the attribution of the author. According to Section 13 UrhG, the author generally has the right to be named as the creator of the work. In this case, however, the BGH ruled that the plaintiff had waived this right through its conduct. As the photomurals were sold without a copyright notice, there was no right to be named as the author.
Significance of the ruling for practice
Effects for buyers of photomurals
The BGH ruling brings legal certainty for buyers of photomurals. They can reproduce their photomurals in photos or videos and publish them on social networks or websites without any legal concerns. As long as no special contractual restrictions have been agreed, the author's consent is implied.
Significance for web and media agencies
The ruling also has significant implications for web and media agencies. They can use photo wallpapers that have been installed in the rooms they have designed in online content without hesitation. The ruling makes it clear that third parties who are not directly connected to the purchase of the photo wallpaper can also rely on the implied consent of the author.
Scope of action for authors when using their works
For authors, the ruling means that they must clearly define their scope of action when marketing their works. If they want restrictions on the use of their works, these should be set out in a contract. In addition could attaching a copyright notice or a reservation of rights to the photo wallpaper prevents implied consent from being assumed.
Conclusion of the BGH ruling: No copyright infringement through photo wallpapers on the Internet
The ruling of the Federal Court of Justice clarifies that the reproduction of photo wallpapers in online media does not constitute copyright infringement if no specific restrictions have been agreed. The author's implied consent covers the usual use of the photomurals, including their reproduction in photos and videos on the internet. For buyers and users of photo wallpapers, this ruling creates legal certainty and clarifies the legal situation regarding the use of copyrighted works on the Internet.
FAQ on the use of photo wallpaper on the Internet
What does implied consent mean in copyright law?
Implied consent is the tacit consent of the author to the use of their work that arises from the circumstances, for example if a work is sold without restrictions.
Can I show a photo wallpaper in my Instagram posts?
Yes, the BGH ruling confirms that the depiction of a photo wallpaper in online content, such as Instagram posts, does not constitute copyright infringement.
What do authors have to do to protect their rights?
Authors should stipulate contractual restrictions or clearly indicate their rights by means of a copyright notice on the photo wallpaper in order to avoid implied consent.
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