The First Civil Senate of the Federal Court of Justice (BGH) was tasked with determining whether the plaintiff, Günther Jauch, was entitled to monetary claims due to the unauthorized use of his likeness. A magazine publisher had featured the plaintiff on the cover of a puzzle magazine with the caption 'Günther Jauch shows with 'Who Wants to Be a Millionaire?' how exciting quizzes can be,' despite the issue containing no corresponding editorial content. The plaintiff, who had not consented to the use of his image, sought from the defendant publisher the amount typically paid for authorization of such a publication.
The lower courts had dismissed the claim. However, upon revision, the Federal Court of Justice overturned the appellate court's decision.
The Federal Court of Justice determined that, in the essential balancing of competing interests, the plaintiff's right to personality, which encompasses the right to his likeness, takes precedence over freedom of the press in this specific dispute. While images from contemporary history may typically be disseminated without the consent of the depicted individual within the scope of reporting, the determination of whether an image qualifies as contemporary history must be based on the informational value of the depiction and its accompanying commentary. In this instance, the informational content of the caption was so negligible that it merely served as a pretext for featuring the plaintiff's image, thereby exploiting his advertising and brand value for the defendant publisher's puzzle magazine.
The appellate court, to which the case has been remanded, must now ascertain the outstanding findings regarding the quantum of the plaintiff's claim.
Judgment of the Federal Court of Justice of March 11, 2009 – I ZR 8/07
Lower Courts:
Higher Regional Court of Hamburg, Judgment of December 5, 2006 7 U 90/06, GRUR-RR 2007, 142
Regional Court of Hamburg, Judgment of June 9, 2006 324 O 868/05, AfP 2006, 391
Source: Press release of the Federal Court of Justice dated March 11, 2009
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
