Austria: tricky copyright traps in hotel advertising

The plaintiff, a painter, had made a sales exhibition of her paintings in the premises of the defendant hotel company. After the exhibition, the paintings (none of which had been sold) remained in the hotel for some time for a monthly fee to be paid by the defendant. During the exhibition, pictures of the hotel were taken which the defendant then used on its website. On one of these pictures, the plaintiff’s painting “Mozart Symponie No 41” could be seen hanging on a wall in the background. By clicking on the picture it could be enlarged and then, when printed out in A4 format, showed the painting in a size of 11×12 cm. The defendant had not asked for the plaintiff’s permission to publish the picture on the website. The plaintiff filed a motion for an injunction.In its decision of August 9, 2011, the Austrian Civil Supreme Court (OGH) upheld the lower courts’ judgments dismissing the claim.The Supreme Court held that making the picture available on the website constituted a copy of the painting shown in the picture as the enlargement gave a sufficient impression of the main characteristics of the original painting. However, the plaintiff had been aware that pictures for advertising purposes were taken of the hotel during the exhibition. As she had not objected the taking of these pictures, the defendant could have relied on her implicit consent to make these pictures availble on the website. Taking into account, that the picture had been removed from the website as soon as the lawsuit had been served to the defendant, the claim had to be dismissed.Full text of OGH decision 4 Ob 101/11y of August 9, 2011 available in German here>>.

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