Judgments of the BGH of September 11, 2024 – Case No.: I ZR 139/23 / I ZR 140/23 / I ZR 141/23
Photomurals and copyright issues have long occupied the courts. The Federal Court of Justice (BGH) has now clarified, with rulings from September 11, 2024, that the depiction of a photomural on the internet does not infringe the photographer’s copyright (Case No.: I ZR 139/23 / I ZR 140/23 / I ZR 141/23).
According to copyright law, photographs enjoy comprehensive protection. This applies both to the right of exploitation and the moral rights of the author. The BGH has now made it clear that the protection of copyright has its limits. If a photomural can be seen in the background on websites, the BGH ruled that there is no violation of copyright, according to the commercial law firm MTR Legal Rechtsanwälte, which advises, among others, in the areas of IP law and copyright law.
Claim for Damages
The plaintiff in the cases before the BGH was the company of a professional photographer. The company’s business is to market the photographer’s images as photomurals. The plaintiff claimed a violation of copyright because the defendants’ websites displayed photomurals featuring the photographer’s images.
In the case with file number I ZR 139/23, the defendant had decorated a wall with such a photomural. This wallpaper was visible in video posts by the defendant on Facebook. In another case, a media agency had published a screenshot of a website it had designed for a tennis center. In the background of the screenshot, the photomural with a photograph by the photographer was visible (Case No.: I ZR 140/23). In the third case (Case No.: I ZR 141/23), the photomural was visible on the website of a hotel, showing an image of a hotel room.
The plaintiff argued that the depictions of the photomurals violated the usage rights granted for the photographs. Consequently, the plaintiff sought claims for damages and reimbursement of warning costs in all three cases.
BGH: No Copyright Infringement
As in the lower courts, the claims were unsuccessful before the BGH. Although the defendants had reproduced and made the photographs protected as visual works publicly accessible, there was no copyright infringement. The BGH ruled that with the purchase of the photomurals, the defendants had implicitly acquired a right of use. The decisive factor for an implicit (i.e., tacit) consent by the author is whether the use is one the author must expect when making the work freely accessible without restrictions to users. The BGH affirmed this in all three cases.
It must be expected that photomurals will be reproduced in photographs and video recordings in rooms decorated with them. This applies to both private and commercial purposes, the Karlsruhe judges explained in their reasoning. The author should have anticipated that such use could occur as part of the contractual use of the photomurals. The author could have agreed to contractual usage restrictions and indicated such restrictions, for example, by attaching a copyright notice that would be visible to third parties.
Tacit Consent of the Author
The validity of consent does not require it to be explicitly declared to the person infringing the copyright. Buyers of photomurals sold without copyright restrictions can wallpaper their rooms with them and also post photos or videos of these rooms on the internet. In the reproduction and public access thus created, they could invoke the author’s tacit consent, explained the BGH.
Moreover, third parties can also rely on the photographer’s tacit consent if their usage actions are objectively considered normal, the BGH continued. The media agency in the case with file number I ZR 140/23 could also invoke the author’s tacit consent.
Waiver of the Right to Be Named as Author
The Federal Court of Justice also made it clear in all three cases that no claims for damages arise from a violation of the right to be credited as the author. The author had waived this right through implied conduct in the course of distributing the photomurals.
With its rulings, the BGH has provided more clarity regarding the use of photomurals and the limits of copyright law.
MTR Legal Rechtsanwälte has expertise in IP law and advises on copyright matters.
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