Implied Consent in Light of the Customary and Contractual Use of Photo Wallpaper

Implied Consent in Light of the Customary and Contractual Use of Photo Wallpaper

Journal article

1 electronic resource (page 784–791)

Extract Copyright Act, Sec. 13 first sentence, Sec. 16(1), Secs. 19a, 57; Civil Code, Sec. 242 Cd – Coffee Official headnotes (translated from the German by David Wright-Policepayeh) a) Effective consent to an interference in copyright does not require the consent to have been declared to the person interfering in the copyright. Rather, it is sufficient for the right holder to behave in such a way that, from the perspective of an objective third party, the right holder permits the interference. b) If a photographer sells a photograph made by him as a photo wallpaper without restrictions and in particular without a reservation of rights or a designation of authorship, this constitutes (implied) consent to all acts of use that are normally to be expected under the circumstances (continuation of judgment of the Federal Supreme Court, 29 April 2010 – I ZR 69/08, BGHZ 185, 291 – Vorschaubilder I). c) The uses of a photo wallpaper that can normally be expected under the circumstances include the reproduction in the form of the making of photographs of the rooms furnished with the wallpaper and the making of these photographs available to the public on the internet by the authorised users of the rooms themselves and by the service providers commissioned by them, such as the creators of websites or estate agents entrusted with the sale or lease of the rooms. In this respect, the (implied) consent extends not only to the making of the photographs available to the public by the service provider that directly serves the performance of its contract, but also includes the making available to the public on the service provider’s websites for the purpose of its own advertising, such as in connection with reference projects.

Crossref

GRUR International ; 74, 8, 2025, 2632-8550.

[Oxford, England] : Oxford University Press (OUP), 2025.

English

https://academic.oup.com/grurint/article/72/3/231/6998505

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