Judgment of the Higher Regional Court of Düsseldorf, Ref.: 20 U 56/23
Photos are meant to evoke a desire for vacation, and photo wallpapers in hotels serve the same purpose. However, the question arose whether hotels violate copyright when they publish images featuring photo wallpapers on their websites or booking portals. The Higher Regional Court of Düsseldorf ruled in a case with a judgment dated February 8, 2024, that a hotel did not commit copyright infringement against the photographer by publishing photos featuring the photo wallpaper (Ref.: 20 U 56/23).
The protection of copyright in photographs is comprehensive, covering both the exploitation rights to the photos and the moral rights of the author. The latter means that, except in certain cases, the author has the right to be named. This applies even if the author has granted rights of use to their work, as stated by the law firm MTR Legal Rechtsanwälte, which advises on intellectual property law and copyright among other areas.
Higher Regional Court of Düsseldorf rejects allegation of copyright infringement
In the present case, however, the Higher Regional Court of Düsseldorf decided that there was no copyright infringement, even though the hotel had not attributed the photographer in the images of the photo wallpaper.
The photo wallpapers depicted a statue with folded hands in front of a wall in one instance and a beach with ocean waves in another. The hotel had published photos of its wellness rooms with the photo wallpapers in the background on its website and on booking portals. A German photographer and CEO of a Canadian company saw this as a violation of his copyright and, on behalf of the company, warned the hotels advertising their rooms with the photo wallpapers on the internet.
Both the District Court of Düsseldorf in the first instance and the Higher Regional Court of Düsseldorf in the appeal proceedings, however, denied any violation of copyright. The Higher Regional Court determined that although the defendant hotel operator had reproduced the photographs protected as photographic works and made them publicly accessible on the internet, there was nevertheless no copyright infringement, the court stated.
Neither the right of use nor the moral rights of the author violated
The photographer could not claim a violation of his moral rights because the photo wallpapers were brought to market without the photographer’s attribution. Thus, the photographer had implicitly waived his right to be named as the author, clarified the Higher Regional Court of Düsseldorf.
Furthermore, the court stated that there was no violation of the right of use of the photos. The Higher Regional Court took a pragmatic approach to justify this: the hotel operator, by purchasing the photo wallpaper, had implicitly acquired the simple right of use. This also included taking pictures of rooms with the photo wallpaper and publishing them on the hotel’s website. If, conversely, the photo wallpaper could not be seen in commercial or private photos, such wallpaper simply would not sell anymore, which would not be in the photographer’s interest, according to the Higher Regional Court. It could not be expected of the buyer of a photo wallpaper to ensure that no photographs were taken of the room with the wallpaper or that the photo wallpaper was made unrecognizable in the images.
Violation of good faith
The Canadian company bringing the lawsuit could also not assert claims based on the principle of good faith. As the seller of the photo wallpapers, it created the trust that the buyer, as is customary nowadays, would also take photos of the rooms with the wallpaper and publish them. If such use were to be excluded, the right of use must be contractually restricted, according to the Higher Regional Court.
The District Court of Cologne had ruled differently in spring 2023. In that case, the landlord of a vacation rental had published photos of the bedroom with a photo wallpaper in the background on the internet. The District Court of Cologne had decided that this constituted an impermissible reproduction of the photo and thus a violation of copyright.
This demonstrates that the case law on this topic is not uniform and legal support may be necessary in case of doubt. MTR Legal Rechtsanwälte is experienced in intellectual property law and advises on copyright matters.
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