The First Civil Senate of the Federal Court of Justice (BGH) had to decide whether the plaintiff Günther Jauch was entitled to payment claims due to the use of his likeness. A magazine publisher had depicted 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", without the magazine containing a corresponding editorial contribution. The plaintiff, who had not consented to the use of his likeness, demanded from the defendant magazine publisher the amount which, in his opinion, is usually paid for consent to such a publication.
The lower courts had dismissed the action. On appeal, the Federal Supreme Court overturned the decision of the Court of Appeal.
The Federal Court of Justice assumed that in the necessary weighing of the conflicting interests, the plaintiff's right of personality, which also includes the right to his likeness, took precedence over the freedom of the press in the case in dispute. It is true that portraits from the area of contemporary history may regularly be disseminated in the context of reporting without the consent of the person portrayed. Whether a portrait of contemporary history exists is to be judged on the basis of the informational value of the image and the reporting accompanying it. In the present case, however, the information content of the caption was so low that it was limited to creating an occasion for the illustration of the plaintiff in order to exploit his advertising and image value for the puzzle magazine of the defendant publishing house.
The court of appeal, to which the case was referred back, must now make up for the missing findings on the amount of the plaintiff's claim.
Judgment of the BGH of 11 March 2009 I ZR 8/07
Lower courts:
OLG Hamburg, judgement of 5 December 2006 7 U 90/06, GRUR-RR 2007, 142
LG Hamburg, judgement of 9 June 2006 324 O 868/05, AfP 2006, 391
Source: BGH press release of 11 March 2009
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
