If an advertising for a holiday apartment displays a photo wallpaper, it does not constitute a copyright infringement. This was decided by the Stuttgart Regional Court (Ref. 17 O 39/22).
Copyright protection for photographs includes the moral rights and the exploitation rights of the photographs. However, the photographer can grant usage rights to third parties, according to the law firm MTR Legal Rechtsanwälte, which specializes in IP law and copyright law. According to the judgment of the Stuttgart Regional Court on October 25, 2022, the copyright protection does not extend to a photo wallpaper that appears in advertising for a holiday apartment.
In the underlying case, the owner had taken photos of the rooms for the promotion of the holiday apartment and posted them online. In one of the photos, a photo wallpaper was visible. When the holder of the rights to the photo learned of this, she sued for injunction and damages. The photographer had previously transferred the rights to his photos to a company that sold photo wallpapers.
The Stuttgart Regional Court dismissed the lawsuit. The defendant owner of the holiday apartment had indeed published and reproduced the photograph through the advertisement with the photo wallpaper without crediting the author. However, this does not constitute a copyright infringement. The plaintiff had brought the photo wallpaper to the market and was therefore obligated in good faith to consent to the defendant’s use of the photo, according to the court.
In the digital age, it must be expected that photos of the room, and thus of the photo wallpaper, will be taken and that these images will appear publicly accessible on the internet, the Stuttgart Regional Court further explained. Something different can only apply if the defendant had used the photo wallpaper differently than for its actual intended purpose or if the photo wallpaper was no longer recognizable as such. However, that is not the case here. Rather, the photo wallpaper was photographed only incidentally and almost inevitably as part of the room, according to the court.
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