Franz Gernhardt, Chair of the MARQUES Copyright Team, discusses an interesting recent copyright case in Germany.

A German Court ruled that a photograph of wallpaper is considered a reproduction of the copyrighted work on the wallpaper in accordance with Section 16 of the German Copyright Act.

In its decision on 18 August 2022 (available here), the Regional Court of Cologne applied the so-called “Zweckübertragungslehre”. According to this legal theory, only the necessary rights that are required for the specific use of a copyrighted protected work are granted when acquiring a work.

This specific requirement should always be taken into account when granting exploitation rights or licences to copyright protected works for Germany.

Background

The background of the case was that the defendant bought wallpaper with pictures of flowers on it from the plaintiff for €13.50 and placed them on the wall of his holiday apartment.

The defendant offered this apartment for rent on websites. To show other people the apartment, the defendant put pictures of his apartment on his website (see photo).

In these pictures you could see the wallpaper he bought from the plaintiff. The plaintiff sued the defendant for copyright infringement.

The Court considered the action was well-founded. The photographs are reproductions of the flower pictures on the wallpaper. The reproduction is at least given at the time, when the photographs were uploaded to the server to upload it to a website.

The defendant had no right to upload the photographs of the wallpaper to this website. He had neither an oral nor a written agreement nor conduct implying permission to do so. Also a very specific exemption to the German Copyright Act with respect to insignificant accessory work was not given.

Important decision

The decision is of particular importance as the Court held that the mere purchase of the photo wallpaper, in the absence of a contractual agreement, contains neither a licence (even implied) for the reproduction of the of the photo wallpaper in the form of a photograph nor for making it available to the public.

According to the “Zwecksübertragungslehre”, only the necessary rights for the use of a work are granted, which in the present case do not include the rights of reproduction and making available to the public on the internet.

For Germany, this means that rights holders and the acquirers of rights must very carefully review all possible rights and include in a contractual relationship all those that are required for the exploitation of the right.

Franz Gernhardt is Senior Counsel with Bird & Bird in Munich and Chair of the MARQUES Copyright Team.