The First Civil Senate of the Federal Court of Justice has ruled that Axel Springer Verlag must pay a notional license fee of €50,000 due to the commercial exploitation of Gunter Sachs, who passed away a year ago.
Axel Springer Verlag publishes, among other titles, 'BILD am Sonntag'. In the issue of august 10, 2008, the last page featured an editorially designed article illustrated with three photographs of the plaintiff. A large photograph shows the plaintiff reading a newspaper bearing the 'BILD' logo. The caption reads: 'Gunter Sachs on the yacht 'Lady Dracula'. He reads BILD am SONNTAG, just like over eleven million other Germans.' The plaintiff's reading activity was also highlighted in the main text.
Gunter Sachs subsequently sued Axel Springer Verlag for injunctive relief and payment of a license fee of €50,000. The Hamburg Regional Court ordered the publisher to cease and desist, and otherwise dismissed the claim. Upon the plaintiff's appeal, the Hamburg Higher Regional Court further ordered Axel Springer Verlag to pay a license fee in the amount demanded by the plaintiff.
The Federal Court of Justice has now rejected Axel Springer Verlag's appeal against this judgment. The fact that the plaintiff passed away during the appeal proceedings had no impact on the case. The Senate found a violation of the right to one's own image (Sections 22, 23 KUG) in that the plaintiff was commercially exploited for advertising purposes through the depiction and accompanying text reporting without his consent. This is not altered by the fact that the advertisement was not in a clearly identifiable ad, but rather in an editorial article. The defendant publisher, conversely, cannot invoke a predominant public interest in information. Instead, the plaintiff's right to personality – according to the Federal Court of Justice – takes precedence over the public's interest, which is to be considered minor, in the news that the plaintiff reads 'Bild am Sonntag' on his yacht. The Federal Court of Justice also considered that the defendant publisher, by publishing the photo, unlawfully interfered with the plaintiff's privacy. By exploiting the plaintiff for advertising, the publisher gained a pecuniary advantage, which substantiates the claim for license payment.
BGH Judgment of May 31, 2012 – I ZR 234/10 – Playboy am Sonntag
Lower Courts:
Hamburg Regional Court – Judgment of December 4, 2009 – 324 O 338/09 (AfP 2010, 193)
Hamburg Higher Regional Court – Judgment of august 10, 2010 – 7 U 130/09 (ZUM 2010, 884)
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
