Photomurals in Advertisement Images: Copyright Assessment in the Context of Vacation Rental Ads
The question of the copyright protection of designs used in advertising materials is repeatedly the subject of legal disputes. This topic becomes particularly relevant when interior photographs of properties used for advertising purposes include image elements such as photomurals. The decision of the Stuttgart Regional Court on 23.06.2023 (Case No.: 17 O 39/22) has enriched this area with a practically relevant facet.
Initial Situation and Subject Matter of the Dispute
The core of the proceedings was the depiction of a photomural in an online advertisement for a vacation apartment. The rights holder of the mural claimed that his copyright to the photomural was infringed by the published advertisement photo.
Protectability of Photomurals under the Copyright Act
Copyright protection according to §§ 2 ff. of the Copyright Act requires that the disputed work is a so-called unique, personal creation. The standard here is based on the “level of creation,” meaning a certain degree of individuality and design that goes beyond the ordinary.
Key Criteria in Applied Arts
Especially for products in the field of applied arts such as wallpapers, decorative objects, and other mass-produced items, the assumption of sufficient level of creation is often disputed. In these cases, the court examines whether the design of the wallpaper has a recognizable value and clearly stands out from pre-known designs.
In the decided case, the Stuttgart Regional Court concluded that the present photomural does not enjoy copyright protection. The court justified this view by stating that it was purely a functional, aesthetically pleasing but not individually creative design. A special artistic uniqueness had either not been or not sufficiently recognizable.
Dissemination of Copyright-Protected Works through Photographs of Interiors
It is undisputed that works of visual or applied art can become part of photographic reproductions in rooms. It is also recognized that a publication of such photographs could constitute a usage act within the meaning of § 19a of the Copyright Act (making available to the public), provided that a copyright-protected work is clearly identifiable in the photo and is a central image element.
In the present case, the court already denied the protectability of the wallpaper. Even if this had been assumed, the court saw in the circumstance of the merely incidental depiction another aspect: The photomural did not take a prominent position in the advertisement image and was not used as a central design motif.
Trivial Uses and the Right to Quote
It should also be noted the so-called “insignificant inclusion” (§ 57 of the Copyright Act), according to which within the framework of photos, the more or less accidental inclusion of a work does not generally constitute an infringement, provided that the work does not form the actual subject of the depiction but merely appears as an accessory.
Significance for the Practice of the Real Estate and Advertising Industry
The decision strengthens legal certainty, especially for providers of vacation accommodations, real estate agents and platform operators: When photographs of interiors are taken and everyday objects, furnishings, or even photomurals can be seen, it generally does not require special permission from the rights holder, as long as there is a lack of the required creative individuality and no targeted promotional highlighting of the object occurs.
Limit to Impermissible Use
Nevertheless, it remains necessary to examine in individual cases whether exceptions apply. For example, the situation might be evaluated differently if well-known artistic works or distinctive designer pieces are deliberately used or particularly highlighted as an advertising motif.
Conclusion and Further Considerations
The judgment of the Stuttgart Regional Court makes it clear that in the mass business of the real estate and hotel industry, not every element on an advertisement photo automatically enjoys copyright protection and is subject to a licensing requirement. The legal classification depends decisively on the individuality of the depicted object and the nature of the use.
The topic remains complex, especially at the interface with application-oriented art and in assessing when a work is to be classified merely as an accessory. Those seeking comprehensive security or wanting to be on the safe side in advertising activities will find in-depth advice and well-founded legal support from law firms with proven experience in copyright, IT, and media law.
For further questions related to the use of designed interiors in advertising, the copyright classification of designs, or the legally secure design of advertising appearances, the lawyers at MTR Legal are available nationwide to examine individual concerns in their respective context and provide solution-oriented support.
