The plaintiff Regina Halmich was a professional boxer for many years, the defendant is an author and director of documentary films, the defendant a cameraman. In October 2007, the parties concluded a contract for a documentary film which was to show the life and career of Ms Halmich. A remuneration of 3,500 euros was agreed for her participation in this film; in return, the defendants received the right to show the film on television and at film festivals. According to the contract, the plaintiff's consent to the screening in cinemas for commercial purposes was "subject to the condition precedent... of the conclusion of an industry-standard exploitation contract with a film distributor and the payment of further appropriate remuneration for the granting of the screening right to Ms Halmich." The film was made with the cooperation of the plaintiff. In January 2008, the defendants submitted a document to her for signature which contained the declaration that the condition precedent to the right to screen the film had been waived and that all other conditions precedent had been fulfilled. A film distribution agreement was subsequently concluded and the film "Queen in the Ring" was released in cinemas. Ms Halmich challenged her written declaration of January on the grounds of fraudulent misrepresentation and brought an action for damages for infringement of her right of personality because the film had been released in cinemas without her consent.
The Karlsruhe Regional Court found a claim for damages.
The defendant's appeal to the Karlsruhe Higher Regional Court was unsuccessful. The 6th Civil Senate stated that according to § 22 sentence 1 of the German Art Copyright Act (KunstUrhG), portraits may only be disseminated or publicly displayed with the consent of the person portrayed. The right to one's own image, which is protected in this way, is a special manifestation of the general right of personality. In the film, Ms Halmich was not only shown performing in public, for example in boxing matches in front of an audience, but also in numerous pictures from her childhood and youth as well as in her private and domestic environment. Although Ms Halmich had already received a sum of 3,500 euros for her participation in the film, and had also been reimbursed for legal costs of 3,000 euros, her consent to the commercial exploitation of the film in cinemas was nevertheless deemed not to have been given, as she had initially only agreed to the screening of the film in cinemas as part of film festivals. If, however, the agreement of January 2008 were to be regarded as effective, Ms Halmich would have waived the restrictions under which she had placed her consent to the distribution of her likeness in the original contract. However, the senate agreed with the Regional Court that Ms Halmich had effectively and timely challenged her declaration of intent. After taking evidence, the Regional Court had rightly seen a fraudulent misrepresentation in the fact that the defendants had pretended to Ms Halmich that they only needed her signature to acknowledge the amount of money received and as a prerequisite for obtaining subsidies, but that this did not involve any disadvantages for Ms Halmich. They had concealed from her that with her signature she was foregoing the possibility of obtaining further, substantial remuneration for her consent to the exploitation of the film in the cinema. This conclusion was supported not only by the testimony of the witnesses, but also by other aspects, such as the fact that the supplementary agreement had not been discussed with Ms Halmich's lawyers, who had previously dealt with the contract, that she had not been given a copy of the agreement, and that the actual focus of the provision, namely the waiver, had only been expressed in clauses. The conduct gave rise to the defendant's obligation to pay damages for unlawful and culpable infringement of the plaintiff's right to her own image. The deceptive act had enabled and initiated the commercial exploitation of the film in the cinema. The defendants had created the preconditions for and contributed to the fact that the commercial exploitation of the film in the cinema had begun without the plaintiff's consent required under § 22 KunstUrhG. The plaintiff had a legitimate interest in establishing the obligation to pay damages, since the defendants denied this claim, the amount of the damages had not yet been determined and the claim was threatened with being time-barred.
The appeal has not been admitted.
Karlsruhe Higher Regional Court, judgement of 10.09.2010, ref. no.: - 6 U 35/10 -.
Source: Press release of the OLG Karlsruhe
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
