German Supreme Court paves the way for broader application of implied consent in copyright law

In these three cases, the German Supreme Court has ruled where the plaintiff and copyright owner – while actively distributing its photos in the form of photo wallpapers – had sued two of its customers and, in one case, a business partner of another customer for publishing photos and videos taken in front of the wallpapers they had purchased. The Supreme Court's conclusion is that such background appearances of photo wallpapers are hardly surprising and therefore covered by the copyright owner’s implied consent. This ruling presents a convincing resolution to the cases but at the same time, the prospect of the decisions being applied more broadly leaves copyright owners with some uncertainty about how courts may expand what is deemed permissible use under “implied consent” in future cases.

What happened?

In all three cases, copyright claims were initiated by a company that distributes photo wallpapers featuring photographs taken by its CEO. Under German law, photos are copyright protected regardless of whether they meet the threshold of being “own intellectual creations” (see Articles 2 (2) and 72 of the German Copyright Act). The defendants, for both private and commercial purposes, had published their own photos, videos and screenshots in which the plaintiff’s wallpapers appeared in the background:

• Case I ZR 139/23: The defendant had installed the wallpaper in her private home and later shared videos on Facebook, where the wallpaper was visible in the background.
• Case I ZR 140/23: The lawsuit was aimed at the owner of a web and media agency that had displayed a screenshot on its website, showcasing a website layout which the agency had designed for a tennis centre. The layout shown on the exemplary screenshot included a view of the centre’s dining area, where the wallpaper had been installed.
• Case I ZR 141/23: The defendant, a hotel owner, featured a promotional image of a guest room where the wallpaper had been installed on the hotel’s websites to advertise the room.

In the first and third cases, the defendants had purchased the wallpaper directly from the plaintiff or through an authorized vendor. In the second case, the purchase had been made by the operator of the tennis centre. None of the purchase agreements imposed any restrictions on the use of the wallpaper.

Decisions of the German Supreme Court

In all three cases, the German Supreme Court sided with the defendants, confirming that their use of the photo wallpapers was lawful under the principle of implied consent. The Court held that in order to assess whether a right holder's conduct can be considered implied consent, it is particularly relevant to determine:

“whether the use [by the defendants] is a foreseeable form of use that the right holder must expect and whether the right holder nevertheless makes his work freely available to users without restriction.” (Case I ZR 140/23, para. 21; translated by the authors)

The Court concluded that, by selling photo wallpapers without any express restrictions on their use, the plaintiff had implicitly consented to common and foreseeable uses of the wallpapers, such as their inclusion in photographs or videos taken for purposes such as those of the defendants. In Case I ZR 140/23, the Court also clarified that implied consent does not need to be declared to the party invoking it. Thus, the owner of the web agency could rely on the consent, even though she had not been involved in the purchase of the photo wallpaper.

Outlook

The judgments put an end to the uncertainty created by the regional court of Cologne which had granted the photographer’s claims in a parallel case (judgement of August 18, 2022 in Case 14 O 350/21). When applied broadly the three Supreme Court cases may well, however, pave the way for implied consent to become significantly more important in German copyright law. The recent judgments are not the first Supreme Court rulings on the concept of implied consent, but previous copyright case law on this issue has largely focused on situations where a copyright owner made a work available on the internet (e.g., Cases I ZR 69/08 and I ZR 140/10 “Vorschaubilder I” and “Vorschaubilder II”). In contrast, the current judgements extend the application of “implied consent” in copyright law to physical products – in case the distribution of photo wallpapers.

It is also worth noting that, unlike the courts of lower instance, the Supreme Court did not find it necessary to rule on whether selling a photo wallpaper could be interpreted as implicitly granting the defendants a (simple) license. An “implied license” would have been governed by Article 31(5) of the German Copyright Act, which provides a safeguard for copyright owners by ensuring that, by default, the scope of any licensing is limited to what is expressly stipulated or required by the purpose of the respective agreement. Finding “implied consent” and thereby dismissing infringement lawsuits whenever a certain form of use by a contracting or even a third party is considered “foreseeable” in hindsight does somewhat shift this logic: it burdens the copyright owners with the uncertainty of assessing what kind of use may be considered “foreseeable” and requires them to put restrictions in place to prevent such interpretations.

Authored by Jan Hendrik Schmidt and Johannes Großekettler