An advertisement for a vacation rental that features a photo wallpaper does not constitute a copyright infringement, according to the Landgericht (LG) [Regional Court of] Stuttgart (case ref.: 17 O 39/22).
The protection of copyright in photographs encompasses the originator’s personal rights – often referred to as “moral rights” – and the rights to (commercially) exploit the photos. The photographer can also grant third parties rights of use, notes MTR Legal Rechtsanwälte, a commercial law firm whose expertise extends to copyright and IP law. There are, of course, also limits to copyright protection, as illustrated by a ruling of the Landgericht Stuttgart from October 25, 2022, in which the court found that the protection of copyright does not extend to a photo wallpaper that features in advertising for a vacation rental.
The owner in that case had produced photos of the rooms and put these online for the purposes of promoting the property. One of these shots featured a photo wallpaper. When the owner of the rights to the photo became aware of this, they filed a cease-and-desist motion and sued for damages. Notably, the photographer had already transferred the rights in question at an earlier date to a company that sold photo wallpapers.
These legal actions were subsequently dismissed by the LG Stuttgart. Despite acknowledging that the defendant – the owner of the vacation property – had published and reproduced the relevant photograph without naming the originator in its promotional shot featuring the wallpaper, the court nevertheless concluded that this did not amount to a breach of copyright. As the party responsible for putting the photo wallpaper into circulation, the plaintiff was said to be obligated to consent in good faith to the defendant using the photo.
The LG Stuttgart went on to state that it is to be expected in the digital age that photos will be taken of the room and hence also of the photo wallpaper, and that these shots will appear online in a publicly accessible form. A different outcome would only have been possible if the defendant had used the wallpaper in a manner other than it was intended to be used, or if the photo wallpaper was no longer recognizable as such. This was found not to be the case here. The court also noted that capturing the wallpaper had been an incidental – and almost inevitable – part of photographing the room.
The team of legal experts at MTR Legal Rechtsanwälte includes specialists in copyright and IP law.
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