The Federal Court of Justice will hear three copyright cases on June 27th because of a piece of paper on the wall. The reason for this is the German photographer Stefan Böhme. He sends out expensive warnings and takes legal action against people who have posted pictures or videos online in which a wallpapered wall can be seen in the background. Wallpapered with a correctly purchased, legal photo wallpaper showing a motif that Böhme took or was inspired by a Böhme photograph. This will quickly make you a lawbreaker, at least if you end up before the Cologne regional court, even though Böhme licensed his images for the wallpaper.
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At the LG Cologne, the landlady of a holiday apartment was sentenced to pay damages in 2022 for violating the photo wallpaper photographer's copyright (ref. 14 O 350/21). The woman had advertised her holiday apartment online with photos. In the background of the picture, a wallpaper with a painted tulip pecked on a wall. The tulip painting was imitated from a photo for which Böhme is considered the author. The photographer approved the print on the wallpaper, but not the copying of the image by the holiday apartment landlord. It was expensive for the woman. According to the Cologne Regional Court, she unlawfully reproduced the painted tulip and made it accessible online.
In doing so, the court can rely on previous case law from the Federal Court of Justice (BGH), which made a key decision on copyright ten years ago: In the “Furniture Catalog” case (ref. I ZR 177/13), the BGH made the exception for “insignificant accessories”. in the copyright law. In a picture of a seating area in a furniture catalog, a painting hanging on the wall could be seen in the background. His painter complained; The Cologne Regional Court and Higher Regional Court classified the painting as an insignificant accessory, but the BGH ruled otherwise. This was expensive for the furniture dealer – and years later for the landlady of the wallpapered holiday apartment.
Düsseldorf judge disagrees
In Düsseldorf, the judges treated similar photo wallpaper cases differently. Since the photographer consciously licensed photos for photo wallpaper to his own company and then marketed them through them, it can be objectively seen that he agrees to the use of his images on walls and their publication on the Internet. Even if that were not the case, the copyright lawsuit would be an abuse of German law. Whether the motif on the photo wallpaper is an insignificant accessory is irrelevant.
The Federal Court of Justice has now accepted three decisions from Düsseldorf for appeal. Case I ZR 139/23 concerns video contributions posted on Facebook in which a photo-wallpapered wall can be seen in the background. The case I ZR 141/23 is reminiscent of the Cologne case: a photo-papered wall could be seen in photos on hotel booking websites. Things are really meta in case I ZR 140/23: A woman posted a screenshot of a tennis center website online; The documented website also contains a picture light of the guest room of the tennis center, the wall of which is (un)decorated with a photo wallpaper depicting an image motif to which the photographer claims rights through his company registered in Canada.
The plaintiff lost in the first and second instances and would like to have that reversed by the BGH, as the court announced on Wednesday. It is likely that the Federal Court of Justice has or will receive further appeals for cases involving the same plaintiff, and the judges would like to make model decisions based on the three cases that have now been selected.
In April 2023, the plaintiff lost another photo wallpaper case against a hotel in the second instance, this time at the Düsseldorf Higher Regional Court (Az. I-20 U 56/23), because the value in dispute was over 5,000 euros, namely 22,000 euros. The Higher Regional Court also noted that Böhme also waived his right to affix the author's attribution through consistent behavior. The plaintiff would also like to have this judgment reversed by the BGH, but this is not yet on the agenda for June 27th.
Elegant verdict from Stuttgart
A refreshingly short first instance ruling from October 2022 is known from the Stuttgart Regional Court. Therefore, not only the question of the non-essential accessories is irrelevant, but also whether the photographer has (impliedly) granted a license. Because the author is obliged in good faith to consent to the intended use of the legally purchased photo wallpaper.
This year the BGH will decide whether to confirm this interpretation or whether to apply its furniture catalog decision from 2014 to photo wallpaper. He will probably also clarify the question of whether the defendants should have included the name Stefan Böhme as the author's name in every photograph of their premises. In order to find out more details, heise online has requested the publication of the three contested judgments of the LG Düsseldorf.
The largest group paid
There is little consolation for those affected who lost their case and could not afford the legal remedy, or who could not afford the risk of litigation and had to pay the warning. This is certainly the largest group. One of them is Anders Markus Hawner, operator of the whiskey chest in Schmelz in Saarland. He covered one wall of his shop with photo wallpaper and then showed the goods left in front of the wall online. The wallpaper was included in the picture. In several YouTube videos he describes his shock and displeasure at the warning.
At the beginning of the year, the whiskey dealer reminded photographer Böhme in a new video: “I'm telling you again that you don't forget that there are people who unfairly ruin people financially through loopholes in the law.” He, Hawner, was not ruined, but had to pay thousands of euros. But other people risked even more money in court, some with disputes amounting to over 22,000 euros: “Because of a piece of paper on the wall.”
(Update 11:16 p.m.): In the seventh paragraph, Cologne Higher Regional Court replaced by Düsseldorf Higher Regional Court and the appeal to the BGH is mentioned. (/Update)
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