The I. Civil Senate of the Federal Court of Justice, which is responsible, among other things, for disputes concerning the commercial exploitation of general personality rights, has ruled that advertising featuring the image of a prominent person on the cover of a newspaper may exceptionally be permissible even without reporting that justifies this image, if it serves the purpose of informing the public about the design and orientation of a new newspaper.
The plaintiff is Boris Becker. The defendant publishes the Frankfurter Allgemeine Sonntagszeitung (FAZ). Before the first issue appeared on September 30, 2001, it presented a test copy of the newspaper to the professional public. This test copy was depicted in rolled-up form – as newspapers are typically placed in newspaper tubes – in the advertising campaign for the launch of the newspaper from September 10, 2001, to March 31, 2002. The image shows the upper part of the front page with the newspaper's name. Below it, on the left, is a photograph of the then Federal Foreign Minister Fischer, and on the right, a portrait photo of the plaintiff. Next to the plaintiff's image is the headline “The stumbling darling” with the subtitle “Boris Becker's arduous attempts not to be thrown off the path to success page 17”. The original test copy of the newspaper depicted in the advertising campaign showed, in addition to a developed front and back page, only the intended layout and notably did not contain the report on Boris Becker announced for page 17. Such a report also did not appear in any subsequent issue of the newspaper. The photograph was published without the plaintiff's consent.
The plaintiff is of the opinion that the defendant infringed his right to his own image by using his likeness without permission in its advertising campaign. He sued the defendant for payment of a hypothetical license fee amounting to €2,365,395.55. The Regional Court ordered the defendant to pay €1.2 million, dismissing the remainder of the claim. On the defendant's appeal, the appellate court declared the plaintiff's claim justified in principle.
On the defendant's appeal, the Federal Court of Justice partially overturned the appellate court's decisions.
The assessment of whether the photograph of the plaintiff used in the defendant's advertising campaign could be disseminated as a portrait from contemporary history within the meaning of § 23 para. 1 no. 1 KUG without his consent required a balancing of the plaintiff's interest in the protection of his personality and the public's interest in information, as pursued by the defendant. The advertising in question is not comparable to advertising depicting an actually published issue of a newspaper. A person of contemporary history must tolerate such advertising, at least in a certain temporal context with the appearance of the newspaper, if the newspaper article itself and its announcement on the front page are unobjectionable. The infringement of the plaintiff's personality rights was not particularly severe, although it did not present him in a favorable light. While the defendant attracted viewers' attention to its newspaper by depicting a small, neutral portrait of the plaintiff, it did not create the impression that the plaintiff was endorsing its newspaper. The defendant, on the other hand, could invoke the interest protected by the fundamental right of freedom of the press to inform the public about the design and orientation of its new newspaper by depicting a front page. Before the first issue appeared, it could only advertise with the front page of an unpublished issue of the Sunday newspaper. Therefore, a balancing of the interests involved initially deemed the depiction of a portrait photo of the plaintiff permissible, even without the announced reporting.
However, the difficulty of not being able to advertise with an already published copy of the newspaper only existed for the phase until the Sunday newspaper appeared. Soon after September 30, 2001, it was reasonable for the defendant, in view of the plaintiff's infringed personality rights, to change its advertising for the new publication and to use the front page of a published issue of the newspaper in its advertising campaign. The Federal Court of Justice therefore considered the plaintiff's claim justified in principle insofar as the defendant continued to use his likeness in its introductory advertising even after november 1, 2001. The appellate court will now have to decide on the amount of the hypothetical license fee due to the plaintiff.
Judgment of the BGH of October 29, 2009 – I ZR 65/07
Lower Courts:
LG Munich I – Judgment of March 22, 2006 – 21 O 17367/03
OLG Munich – Judgment of March 6, 2007 – 18 U 3961/06
AfP 2007, 237 = ZUM-RD 2007, 360
Source: Press Release of the Federal Court of Justice
Goldberg Rechtsanwälte
Michael Ullrich, LL.M. (Information Law)
Attorney and Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
