Copyright: No mercy for grandma's photo wallpaper at Cologne District Court

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A grandmother renovates and in 2012 has a legally purchased photo wallpaper put up that shows a photo of a wall. From 2015, the then 90-year-old can no longer live alone and moves in with her granddaughter. To cover part of the care costs, the granddaughter takes over Grandma's house and rents it out as a vacation apartment. The woman advertises the apartment on the Internet. After eight years, she suddenly receives a warning letter from a Canadian company demanding money: the website shows a photo of a room with the photo wallpaper stuck to the wall. This makes the granddaughter an infringer.

At least if the Cologne Regional Court has to decide: The photographer of the wall may have authorized the printing of his photo on the wallpaper, but not the "reproduction" of the photo of the wall by the vacation apartment landlady on the Internet, the 14th Civil Chamber of the Regional Court of Cologne says in a ruling available online at heise (Ref. 14 O 60/23). This "making available" of the photo of the wall is therefore an infringement of copyright law.

And because the granddaughter did not find out that the photographer of the wall was called Stefan Böhme and did not name Böhme on the vacation apartment website, she also infringed his moral rights. He transferred his rights to his own company registered in Canada, which is now sending out warning letters and filing lawsuits in Germany. This also applies to upholsterers who install photo wallpaper on behalf of customers and document the work online, such as master painter Kay Hofmeister.

Furniture catalog precedent

In fact, the Cologne Regional Court can base its interpretation of copyright law on the Federal Court of Justice (BGH). Ten years ago, in the "furniture catalog" case (case no. I ZR 177/13), it interpreted the exception for "insignificant accessories" in Section 57 of the Copyright Act very narrowly. In a picture of a seating area in a furniture catalog, a painting hanging on the wall could be seen in the background. Its painter sued; the Cologne Regional Court and Higher Regional Court classified the painting as an immaterial accessory, but the Federal Court of Justice ruled to the contrary. This cost the furniture retailer - and years later landlords of wallpapered vacation apartments - dearly.

Mr. Böhme has already won such a copyright case over a photo with photo wallpaper at Cologne Regional Court, also against a landlady of a vacation apartment. The latter did not risk the additional costs of an appeal, so the judgment (case no. 14 O 350/21) became final: The photo wallpaper photographer was also able to convince the court with his lawsuit against the granddaughter, but must go to the second instance. This is because the granddaughter risks additional costs and is taking legal action.

Also in April, the Cologne Regional Court handed down at least two other photo wallpaper judgments, namely against master painters. Years ago, they stuck photo wallpapers on walls on behalf of customers and posted photos of their work online as a reference (Ref. 14 O 70/23 and 14 O 75/23). In the opinion of Cologne Regional Court, this is also a copyright infringement – which is twice as expensive because the name of the photographer is not mentioned in the picture of the wallpapered room wall. One of those affected is master painter Hofmeister from Lehrte-Ahlten (Hanover area). He does not want to put up with this jurisdiction and has announced to heise that he will also appeal. Both the master painter and his granddaughter must hope for new case law from the Federal Court of Justice.

Courts in Düsseldorf and Stuttgart take a different view

The wallpaper photographer Böhme was unsuccessful in the courts in Düsseldorf and Stuttgart. The Regional Court and Higher Regional Court of Düsseldorf believe that Böhme implicitly granted a license by selling the wallpaper on the one hand and that his lawsuits were an abuse of rights on the other. The photographer would like to have these defeats in the photo wallpaper case overturned by the Federal Court of Justice. The case will be heard there on June 27.

The Stuttgart Regional Court (case no. 17 O 39/22) has had an even shorter trial with the photographer; according to this, it is irrelevant whether the wallpaper purchase is implicitly associated with a license to publish room photos or whether the wallpaper in the room photo falls under "insignificant accessories". This is because the author is obliged in good faith to consent to the intended use of the legally purchased photo wallpaper anyway. Böhme appealed to the Higher Regional Court of Stuttgart (case no. 4 U 194/22), but withdrew the appeal during the hearing. The senate had given him to understand that his appeal had no prospect of success. This judgment therefore became final.

The Munich Higher Regional Court also ruled against Stefan Böhme (case no. 29 U 1280/23e). This judgment has not been published and, according to information available to heise online, is not legally binding. The photographer has therefore obtained a stay of his appeal until the BGH has ruled on his Düsseldorf appeals.