The Regional Court of Cologne recently issued an exciting ruling on the question of a hotelier’s liability if he posts a photo of a room on a booking platform and if a copyrighted floral wallpaper can be seen in this photo.

According to the court, the photo of the hotel room, which (among other things) depicted the photo wallpaper, is a pure reproduction according to the German Copyright Act. § 16 para. 1 UrhG of the photograph or photographic work visible on the wallpaper. The use of this photograph on Internet booking platforms then constitutes public disclosure pursuant to Section 19a UrhG. However, in the absence of a contractual agreement, the mere purchase of the photo wallpaper (which leads to copyright exhaustion with regard to the use of the same in the hotel room) does not in principle contain a (possibly implied) license for the reproduction of the photo wallpaper in the form of a photograph, nor for making it available to the public. According to the concept of transfer of purpose, only the necessary rights of use are granted upon purchase, which in the present case would not include the rights to reproduce and make available to the public on the Internet.

In the case in dispute, the photo wallpaper is not only an insignificant accessory pursuant to Art. § Section 57 UrhG, if it is a central element in the room design and is placed prominently on the rear wall. So hoteliers can quickly fall into expensive traps here, since a “normal thinking” person would probably not have thought of this problem. There are similar problems in other cases, for example, in the case of photos of business premises, on the walls of which hang well-known, copyrighted, photos, which are then clearly visible in the photos of the premises.

The court on this:

According to Section 57 UrhG, the reproduction, distribution and communication to the public of works is permissible if they are to be regarded as an insignificant accessory to the actual object of the reproduction, distribution or communication to the public. The provision also covers the right of making available to the public within the meaning of Section 19 a UrhG (BGH, GRUR 2015, 667, 668, marginal no. 15 – Möbelkatalog). The question of whether a copyrighted work is to be regarded merely as an insignificant accessory with respect to the actual subject matter of use pursuant to Section 57 UrhG shall be answered from the perspective of an objective average observer, taking into account all circumstances of the individual case. It follows that the qualification of a work as an insignificant accessory within the meaning of Section 57 UrhG is determined by the context of the statement, which can be easily perceived and judged as a whole by the average observer under the circumstances. The specifics of the medium in which the copyrighted work is used must be taken into account. Since the assessment as an insignificant accessory within the meaning of Section 57 UrhG presupposes the assessment of the content-related connection between the work and the main subject matter, the scope of the subject matter of a uniform assessment by the average observer also depends on whether and to what extent content-related references determine the message content of the subject matter of the reproduction, distribution or communication to the public in the individual case (BGH, GRUR 2015, 667, 668, marginal no. 22 – Möbelkatalog).

For the affirmation of the protective barrier of Section 57 UrhG, it is not sufficient that the copyrighted work is in the background from the point of view of the objective observer in relation to the main object of exploitation. According to the wording of the limitation provision, it is rather required that the work is insignificant in relation to the main subject matter of the reproduction. Immateriality in this sense is to be assumed if the work could be omitted or replaced without this being noticeable to the average viewer or without the overall effect of the main object being influenced in any way. However, even a work that is actually perceived as such by the viewer when considering the main subject matter of the exploitation may be regarded as an insignificant accessory if, according to the circumstances of the individual case, it cannot be accorded any substantive relationship, however slight, to the main subject matter of the exploitation, but is of no significance whatsoever for the latter due to its randomness and arbitrariness. A merely subordinate relationship is not sufficient for this purpose. In the required narrow interpretation of the limitation provision, insignificant within the meaning of Section 57 UrhG is rather only a work which, apart from the object of the actual exploitation itself, does not attain a minor or incidental significance.

Such a subordinate significance can no longer be attributed to the co-exploited work as soon as it is recognizably included in the actual subject matter of the exploitation in a stylistic or atmospheric manner or underlining a certain effect or statement, fulfills a dramaturgical purpose or is otherwise characteristic (BGH, GRUR 2015, 667, 670, marginal no. 27 – Möbelkatalog). bb) Applying these principles, the photographs at issue cannot be regarded in the present case in their specific use as an insignificant accessory to the guest room. Rather, the photographs in dispute are recognizably used to create the atmosphere of the advertised guest room. The photos are a central element in the room design and are prominently placed there on the back wall, which makes up the main part of the photo image posted on the Internet for advertising purposes.

The photo wallpaper with the photos of the plaintiff depicted on it on a large scale can also not be omitted or replaced without this being noticeable to the average viewer (BGH, judgment of November 17, 2014 – I ZR 177/13 – Möbelkatalog, marginal no. 27, juris). This shows already conspicuously the comparison made by the plaintiff of the room of the defendant with the photo wallpaper and the further room without a photo wallpaper with only white painted walls (page 11 and 12 of the pleading of 25.03.2022, sheet 199 f. of the file). The wall with the photo wallpaper attracts the eye of the beholder, which is not the case with the white wallpaper. The wallpaper with the tulip motifs is rather perceived by the viewer as belonging to the overall concept (compare BGH, judgment of November 17, 2014 – I ZR 177/13 -, marginal no. 31, juris), according to which the room is designed.

The judgment can be found here(Landgericht Köln, 14 O 350/21 (nrw.de)). I prefer not to use the pictures here on the blog 😉