Germany’s Supreme Court rules against photographers in copyright dispute over groundbreaking wallpapers

Earlier this year, a photographer sued a woman after she posted a photo of her grandmother’s apartment on a vacation rental website. The apartment photo showed wallpaper based on photographs by Stefan Böhme.

The wallpaper was purchased legally, but eight years after she began renting the property online, the granddaughter received a letter from a Canadian company claiming copyright infringement because the rented photos included Böhme’s photos.

This remarkable case, which ultimately led to a lawsuit, caused a stir because there are numerous wallpapers containing copyrighted works. Böhme claims that not only was his copyright violated, but his moral rights were also violated because he was not credited by name in the photos that featured his photos on the rental property’s website.

The situation raises the question: Is it legal to photograph a copyrighted background image without the permission of the rights holder? As The IPCata long-running blog specializing in intellectual property explains that the German Supreme Court has ruled that it is permissible for a person to photograph a wallpaper containing copyrighted works and publish the image.

The Federal Court of Justice dealt with this delicate question in three parallel proceedings, I ZR 139/23, I ZR 140/23 and I ZR 141/23, each against the same plaintiff, Stefan Böhme.

The court dismissed Böhme’s appeals from the lower courts, ruling that the plaintiff did indeed own the copyright to the images shown on the wallpapers and that photographing the wallpapers essentially made the copyrighted work available to the public in a certain way, as it did the plaintiff did give tacit consent to certain expected and anticipated uses of her work, including photographs of the wallpaper. If a rights holder makes a work available without restrictions, certain types of use can be expected, according to the BGH.

Given the purpose of wallpaper and the way in which it is commonly used, viewed and represented through images of an interior, the copyright holder of a photograph depicted in the design of a wallpaper cannot reasonably expect that their work will not be shown in images becomes.

This new ruling essentially ends Böhme’s legal saga in Germany. Although the photographer won a verdict at the Cologne Regional Court, there were also defeats, but the Supreme Court verdict takes precedence over all others.

Photo credit: Header photo licensed through Depositphotos.