The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for legal disputes on the commercial exploitation of a general right of personality, has ruled that advertising with the image of a prominent person on the front page of a newspaper may exceptionally be permissible even without a report justifying 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 publication of the first edition on 30 September 2001, it presented a test copy of the newspaper to the professional public. This test copy is illustrated in the advertising campaign for the launch of the newspaper from 10 September 2001 to 31 March 2002 in rolled-up form - as a newspaper is used to be put into newspaper tubes. The illustration shows the upper part of the front page with the name of the newspaper. Below it, on the left, is a photograph of the then Federal Foreign Minister Fischer and, on the right, a portrait photograph of the plaintiff. Next to the picture of the plaintiff is the headline "The stumbling darling" with the subtitle "Boris Becker's arduous attempts not to be thrown off the track of success Page 17". The original of the test copy of the newspaper depicted in the advertising campaign showed, apart from a worked-out front and back page, only the intended layout and, in particular, did not contain the report on Boris Becker announced for page 17. Such a report did not appear in any later issue of the newspaper either. The publication of the photo took place without the plaintiff's consent.
The plaintiff is of the opinion that the defendant violated his right to his own image with the unauthorised use of his likeness in its advertising campaign. He filed a claim against the defendant for payment of a notional licence fee in the amount of €2,365,395.55. The Regional Court ordered the defendant to pay € 1.2 million, dismissing the further claim. On appeal by the defendant, the court of appeal declared the plaintiff's claim to be justified on the merits.
On appeal by the defendant, the Federal Supreme Court partially reversed the decisions of the Court of Appeal.
The examination of whether the photograph of the plaintiff used in the defendant's advertising campaign could have been disseminated without his consent as a portrait from the area of contemporary history within the meaning of § 23.1 no. 1 KUG required a weighing of the plaintiff's interest in the protection of his personality and the public's interest in information perceived by the defendant. The advertisement in the case in dispute could not be compared to an advertisement in which an issue of a newspaper that had actually been published was depicted. A person of contemporary history had to accept such an advertisement, at least in a certain temporal connection with the publication of the newspaper, if the newspaper article itself and its announcement on the front page were unobjectionable. The encroachment on the plaintiff's right of personality was not particularly serious, but did not show him in a favourable light. By showing a small, neutral portrait of the plaintiff, the defendant had indeed drawn the attention of the viewers to its newspaper. However, it did not create the impression that the plaintiff recommended its newspaper. In contrast, the defendant could rely on the interest, protected by the fundamental right of freedom of the press, in informing the public about the design and orientation of its new newspaper by means of a front page picture. Before the publication of the first edition, it had only been able to advertise with the front page of an edition of the Sunday newspaper which had not been published. When weighing up the interests involved, the illustration of a portrait photo of the plaintiff had therefore initially been permissible even without the announced reporting.
The difficulty of not being able to advertise with a picture of a copy of the newspaper that had already been published had, however, only existed for the phase up to the publication of the Sunday newspaper. As soon as after 30 September 2001, on the other hand, it had been reasonable for the defendant to change its advertising for the new newspaper and to use the front page of a published edition of the newspaper in the advertising campaign, in view of the infringement of the plaintiff's right of personality. The Federal Court of Justice therefore held the plaintiff's claim to be justified on the merits insofar as the defendant continued to use his likeness in its introductory advertising after 1 November 2001. The Court of Appeal will now have to decide on the amount of the notional licence fee to which the plaintiff is entitled.
Judgment of the Federal Supreme Court of 29 October 2009 - I ZR 65/07
Lower courts:
LG Munich I - Judgment of 22 March 2006 - 21 O 17367/03
OLG Munich - Judgment of 6 March 2007 - 18 U 3961/06
AfP 2007, 237 = ZUM-RD 2007, 360
Source: Press release of the BGH
Goldberg Attorneys at Law
Michael Ullrich, LL.M. (Information Law)
Lawyer and specialist in information technology law (IT law)
E-mail: info@goldberg.de
