A prominent sportsman or sportswoman does not have to accept that alienated portraits of him or her are disseminated without his or her consent. This was decided today by the 20th civil senate of the Düsseldorf Higher Regional Court, thus confirming a corresponding ruling by the Düsseldorf Regional Court last November.
The defendant had offered the pictures for sale via his homepage and an internet auction platform. They showed a photograph of the professional golfer Martin Kaymer from Mettmann, which the defendant had alienated by changing the colour combination in pop art style. For one of the pictures, the defendant achieved sales proceeds of 43.50 euros by way of an internet auction. In the proceedings, he claimed that he was paying homage to the respective celebrities with his pictures. The dissemination of the portraits served the higher interest of art and also satisfied the general public's interest in information.
The court, on the other hand, saw the dissemination as a violation of the athlete's right to his own image and ordered the defendant to cease and desist and to pay damages. A higher and overriding interest of art could not be established. The pictures, in which the decorative character was in the foreground, had no artistic content beyond pure craftsmanship. They also had only a very low informative value for the general public. Rather, they served primarily commercial interests. Therefore, the plaintiff's right to determine the use of his or her own likeness for commercial purposes prevailed.
The decision is not yet final.
Judgment of the 20th Civil Senate of 23 July 2013, Case No. I-20 U 190/12
Source: Press release of the OLG Düsseldorf
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
