Publication of photographs of copyright-protected wallpaper motifs on the internet – New developments resulting from the latest Federal Court of Justice decision
A recent decision by the Federal Court of Justice (BGH) dated September 12, 2024, has redefined the copyright assessment of photographs depicting photo wallpapers featuring artworks. The series of judgments with the case numbers I ZR 139/23, I ZR 140/23, and I ZR 141/23 offers valuable guidance for the legally compliant handling of images that show works by third parties. Below, MTR Legal Rechtsanwalt analyzes the key aspects of the judgments, examines their impact on creatives, businesses, and image users, and addresses practical follow-up questions. The issues discussed are based on the published wording of the decisions (available at urteile.news).
Background of the BGH decision
Initial facts
The central question in the underlying proceedings was whether photographs of rooms depicting photo wallpapers with copyright-protected works may be published on the internet without requiring the permission of the rights holders of the depicted works. The plaintiffs in the proceedings were the rights holders of the works shown on the wallpapers. The defendants had published photographs of the wallpapered rooms on their internet sites. The rights holders saw this as an infringement of their copyright-protected rights and demanded injunctive relief as well as damages.
Course of proceedings and previous case law
The lower courts reached divergent conclusions: Some held that even the unauthorized depiction of a copyright-protected work in a photograph amounts to an infringement of the reproduction and/or public communication rights (§ 16, § 19a German Copyright Act (UrhG)), while others saw scope for exceptions and limitations. In particular, the regulation of § 57 UrhG was central to the legal discussion.
Key considerations of the BGH
Technical reproducibility and the concept of the work
The BGH clarified that the mere photographic depiction of a copyright-protected work does not necessarily constitute a copyright infringement. An assessment is always required, taking into account the factual and normative framework of the German Copyright Act (UrhG).
Privilege under § 57 UrhG – ‘Incidental inclusion’
A main argument of the BGH decision is the application of the so-called ‘incidental inclusion’ clause of § 57 UrhG. According to this provision, the reproduction, distribution, and public display of a work is permitted if it appears only as ‘incidental inclusion’ alongside the actual subject of the depiction. In the specific case, the wallpaper motifs were not the main focus of the photograph but merely part of the room image. The works therefore justified the application of § 57 UrhG as a limitation.
Balancing of interests and the protective purpose of copyright
The BGH emphasizes the importance of balancing copyright interests. Where the protected work is used only as an incidental element alongside other depicted objects, the protection of the work recedes. The relevant interests differ significantly from cases where the work is made the defining main subject of commercial use.
Impact on rights holders and image users
Limits of protection for designed utility objects
The decisions make clear that holders of copyrights in artistically designed utility objects, as is often the case with designer wallpapers, cannot in every case assert claims for injunctive relief, information, or damages if the work appears merely as a secondary matter in a photo published, for example, for interior design, advertising, or reporting purposes.
Distinction from clear cases of infringement
Scenarios in which the work is at the center of the image—where the photographic use is closely linked to the artistic creation and its commercial exploitation—are not covered by this. Likewise, it remains unaffected that commercial users should always independently examine whether the specific use of an image may infringe rights, for example by specifically using a particular work for advertising purposes.
Relationship to other intellectual property rights
It should also be noted that, in addition to questions of copyright law, other rights (e.g., trademark rights, design rights, personal rights of depicted persons) may also be affected. The decision discussed addresses purely copyright law issues and does not affect other areas of intellectual property rights.
Classification of the decision and current practical implications
Legal certainty in dealing with works of everyday life
The judgments create a solid basis for companies and individuals who wish to present real estate, interiors, or decorative products in a proper light to use images. Nevertheless, borderline cases remain where a thorough evaluation of the circumstances is required. The judgment provides a clear orientation framework for this, but leaves room for judicial decisions in individual cases.
Open questions and developments
It remains to be seen how the lower courts will concretely implement the guidelines set by the BGH. The decision underscores the ongoing development of case law in the area of copyright depiction of works—especially in the era of digital publications.
Source: urteile.news, BGH, judgments of 12.09.2024, I ZR 139/23, I ZR 140/23, I ZR 141/23.
Companies, rights holders, and creatives who are involved in publishing interior photographs or other visual depictions of copyright-protected objects continue to face complex challenges. For further assessments on this topic and the legal enforceability of protective positions, MTR Legal Rechtsanwalt offers comprehensive support.
