Earlier this year, a photographer sued a woman after she posted a photo of her grandmother’s apartment on a vacation property rental website. The apartment photo featured a wallpaper based on photographs taken by Stefan Böhme.
The wallpaper was legally purchased, but eight years after she began renting out the property online, the granddaughter received a letter from a Canadian company alleging copyright infringement because the rental photos included Böhme’s photographs.
This remarkable case, which ultimately resulted in a lawsuit, opened a fresh can of worms, as there are numerous wallpapers that include copyrighted work. Böhme alleges that not only was his copyright violated, so too were his moral rights, as he was not credited in the photographs that showed his photos on the rental property website.
The situation begs the question, are you legally allowed to photograph a copyright-protected wallpaper without the right holder’s consent? As The IPKat, a longtime blog specializing in intellectual property, explains, the German Supreme Court has ruled that yes, a person is allowed to photograph a wallpaper featuring copyright-protected work and publish the image.
The German Supreme Court tackled this thorny issue across three parallel cases, I ZR 139/23, I ZR 140/23, and I ZR 141/23, each with the same plaintiff, Stefan Böhme.
The court dismissed Böhme’s appeals from lower courts, ruling that while yes, the plaintiff owned the copyright to the pictures featured on the wallpapers, and that taking photographs of the wallpaper essentially made the copyrighted work available to the public in a way, the plaintiff had granted implied consent to specific expected and anticipated uses of their work, including photographs of the wallpaper. When a right holder makes work available without restriction, some types of usage should be expected says the German Supreme Court.
Given the purpose of wallpaper and how it is customarily used, viewed, and displayed through pictures of an interior space, the right holder of a photograph featured in a wallpaper’s design has no reasonable expectation that their work will not be shown in images.
This new ruling essentially ends Böhme’s legal saga in Germany. While the photographer did win a verdict in the Cologne Regional Court, amid some defeats, the Supreme Court’s ruling supersedes all others.
Image credits: Header photo licensed via Depositphotos.