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Case:
I ZR 182/04
Date:
26 October 2006
Translated by:
Raymond Youngs
Copyright:
Professor Sir Basil Markesinis

Bundesgerichtshof judgment of the 26th of October 2006
I ZR 182/04

a) The unauthorised commercial use of a picture is generally a ground ¿¿¿ either on the basis of compensation for harm or of unjustified enrichment ¿¿¿ for a claim to payment of a reasonable licence fee, regardless of whether the person depicted would have been prepared or in a position to grant licences in return for money for the dissemination and public reproduction of his picture.

b) A prominent personality from the realm of contemporary history does not as a rule have to put up with a picture of himself being used by third parties for their advertising purposes. But there must be a balancing of rights here, which can lead to the use of a picture of a person in an advertisement having to be accepted by that person if it is a satire on a current event.

[…]

Facts

1 The claimant is Oscar Fontaine. He resigned on the 11th of March 1999 from his offices as Federal Minister of Finance and as Chairman of the SPD. The defendant carries on a vehicle leasing business as a subsidiary of the car hire firm S AG. It placed with a half page advertisement in the ¿¿¿Welt am Sonntag¿¿¿ on the 21st March 1999 and a double page advertisement in the ¿¿¿Frankfurter Allgemeine Zeitung¿¿¿ on the 22nd March 1999 in each case without the claimant’s agreement. This is reproduced (in reduced size) as follows:

[Sixteen faces with one deleted. Caption underneath saying ¿¿¿S also leases cars for employees in the probationary period¿¿¿].

2 The photos show 16 members of the federal government at that time, including the claimant, whose picture is crossed out but is still recognisable

3 The claimant claimed from the defendant payment of a fictional licence fee in the sum of 250,000 DM (127,822.27 euros). He considered that the defendant had taken advantage of his recognisability, and unilaterally commercialised his picture for advertising purposes. The defendant defended the claim.

4 The Landgericht ordered the defendant to pay a sum of ¿¿¿100,000, and rejected the claim in other respects. The appeal court rejected the defendant’s appeal (reference omitted).

5 By its appeal in law (which has been admitted by the Senate) the defendant is pursuing its application for rejection of the claim. The claimant is applying for rejection of the appeal in law.

Reasons

6 I. The appeal court regarded the claim for payment of a fictional licence fee in the sum of ¿¿¿100,000 as well founded. Its explanation on this issue was as follows:

7 It could remain undecided whether the claimant had a claim under ¿¿ 823 of the BGB and ¿¿¿¿ 22 and 23 of the KUG (Artistic Creations Act). The claim arose in any case under ¿¿ 812 para 1 sentence 1 alternative 2 of the BGB. By using the picture of the claimant in its advertisement, the defendant had infringed the claimant’s right to his own picture in an unlawful manner, and thereby obtained a valuable advantage at his expense.

8 The defendant had violated the claimant’s right to his own picture by publishing the photo. Even if the claimant was a person of contemporary history and the prerequisites of ¿¿ 23 para 1 no 1 of the KUG were present, the publication of the picture was not permissible. The balancing of interests which was required under ¿¿ 23 para 2 of the KUG resulted in the justifiable interest of the claimant against publication prevailing. Admittedly the defendant’s interest was protected by freedom of opinion (Art 5 para 1 of the Basic Law). The advertisement in question was not only an advertisement; it contained a satirical expression of political opinion. The question of whether it also had the protection of artistic freedom (Art 5 para 3 of the Basic Law) could remain open. In any case the defendant’s interest in publication had to take second place to the claimant’s right of personality. The claimant’s general right of personality protected his interest in not being used without his consent for advertising purposes by a third party. People in public life in particular, who were already exposed to a special degree to scrutiny and criticism by the public, did not as a rule have to put up with their pictures being used in advertising as an eye-catching device. The fact that the purpose of product advertising was clearly the prominent factor here had in the end to lead to the claimant’s interest protected by the general right of personality prevailing against the defendant’s freedom of opinion and art.

9 The defendant, by infringing the claimant’s right to his own picture, obtained a valuable advantage at his expense. The defendant had to pay a fictional licence fee which the Landgericht correctly valued at 100,000 euros.

10 II. The defendant’s appeal in law is successful. It leads to the quashing of the judgment under challenge and rejection of the claim. The claimant does not have a claim to payment of a fictional licence fee either under ¿¿ 812 para 1 sentence 1 alternative 2 of the BGB, or under ¿¿ 823 para 1 of the BGB and ¿¿¿¿ 22 and 23 of the KUG. The claims assume that the defendant has violated the claimant’s right of personality, including his right to his own picture, in an unlawful manner. This is not so because the dissemination of the picture of the claimant in the advertisement in question was permissible in principle even without his consent, as a picture from the realm of contemporary history (¿¿ 23 para 1 no 1 of the KUG), and no justifiable interest on the part of the claimant has been infringed by the dissemination in the individual case (¿¿ 23 para 2 of the KUG).

11 1. The appeal in law claims that the publication objected to did not affect the protective purpose of ¿¿ 22 of the KUG. This argument is admittedly unsuccessful. Although, in the view of the appeal in law, the picture had merely identified the claimant in the advertisement and could have been replaced by his name, this cannot change the fact that publication of the claimant’s photograph affects the protected area of his right to his own picture. Admittedly the publication objected to is distinct from other cases in which the photograph of a famous personality is used in an advertisement without his consent, because there is no question here of the sympathy and image value of the person depicted being transferred to the product advertised. The advertisement objected to achieves its effect instead by representing the claimant as an employee failing in his probationary period. Its effect therefore rests on a joke at the claimant’s expense. But this does not mean that the right to one’s own picture, which makes its dissemination and public reproduction dependent in principle on the agreement of the person depicted, would not be affected.

12 2. There is also no basis for the objection in the appeal in law that a claim to unjust enrichment is excluded from the outset (1) as the claimant was prevented from himself commercially exploiting his own picture because of the prohibition applying to a Federal Minister on other paid activities (Art 66 of the Basic Law) or (2) on the grounds of political credibility. The appeal court has correctly assumed that a claim to unjust enrichment exists independently of whether the person depicted is prepared or in a position to grant licences in return for payment for the dissemination and public reproduction of his picture. The unauthorised commercial use of a picture represents an invasion of the content allocated by property law to the right to one’s own picture as well as the general right personality. This forms the basis in principle of a claim to payment of the usual licence fee on the basis of the invasion Kondiktion (references omitted), besides the claim to compensation based on fault. The subject matter of the enrichment is the use of the picture. As this cannot be surrendered, replacement of its value must be provided under ¿¿ 818 para 2 of the BGB. A person who exploits a picture of a third party for commercial purposes without justification demonstrates that he attaches an economic value to it. The wrongdoer must submit to the property law classification which this creates and provide replacement value corresponding to the use. This applies independently of whether the person depicted would have been prepared and in a position to allow the depiction in return for payment of a reasonable licence fee. This is because the claim to payment does not assume agreement by the person affected; instead it represents a settlement for an unlawful invasion of the authority to deal with the picture which has been exclusively allocated to the person concerned (references omitted). Any suggestion from the case law of the Bundesgerichtshof that a compensation or enrichment settlement on the basis of a reasonable licence fee assumes agreement in principle on the part of the person depicted with the marketing of his right to his own picture (references omitted) will not be followed.

13 3. The dissemination of the claimant’s photograph in the advertisement in question was permitted under ¿¿ 23 para 1 no 1 of the KUG (subject to examination of the prerequisites of ¿¿ 23 para 2 of the KUG, as to which see under 4). According to this, a picture from the realm of contemporary history may be disseminated without the agreement of the person depicted.

14 a) A picture of the claimant is ¿¿¿ and this is in any case undoubtedly so in view of the direct connection in timing and content with his resignation as finance minister and SPD chairman - a picture from the realm of contemporary history (¿¿ 23 para 1 no 1 of the KUG). The fact that the picture has been disseminated as part of an advertisement does not change anything in this respect.

15 b) It is true that a person cannot rely on ¿¿ 23 para 1 no 1 of the KUG if he is not fulfilling an interest of the public in information which is worthy of protection. There is no such interest in relation to advertisements if they exclusively serve the business interests of the undertaking advertising by means of the picture (references omitted). This is in particular the case when the picture from the realm of contemporary history is only used in order to exploit the advertising value of a prominent personality, and to transfer it to the product advertised. On the other hand, ¿¿ 23 para 1 no 1 of the KUG can apply if the advertisement has an information content for the general public in addition to its advertising purpose (references omitted). This is because the commercial context does not exclude the possibility of the publication also providing information for the general public (references omitted). The protection of Art 5 para 1 of the Basic Law extends to commercial expressions of opinion and to pure economic advertising which have a content which evaluates and forms opinions, and indeed to publication of a picture which conveys or completes an expression of opinion (references omitted).

16 The advertisement which the claimant objects to does not exclusively serve an advertising purpose, but also contains a satirical statement of political opinion relating to a current event in connection with the claimant’s picture. By comparing the claimant to a worker who has failed in his probation period, the defendant takes an ironical look at the fact that the claimant resigned after a short period in office as finance minister. This opinion-forming content is not displaced by the obvious advertising purpose of the advertisement.

17 4 The dissemination of the claimant’s picture in the actual advertisement, which is permissible in principle under ¿¿ 23 para 1 no 1 of the KUG, does not violate his justifiable interests (¿¿ 23 para 2 of the KUG).

18 a) Under ¿¿ 23 para 2 of the KUG, the authority for publication of pictures from the realm of contemporary history without consent does not extend to a dissemination which violates a justifiable interest of the person depicted in the individual case. The question of whether this is so must be answered on the basis of a comprehensive balancing of the rights and interests which is orientated towards the individual case. This is because, due to the special nature of the right of personality as a framework right, there is no absolute protected area for the right; the scope of the protection must instead be determined by a balancing in each case with the interests worthy of protection on the other side (references omitted). At the same time it must be ascertained, having regard to the intensity of the infringement in question, whether greater importance should be attributed to the component of the claimant’s right of personality which is here only of financial value than to the legal position on which the defendant relies when disseminating the advertisement by appealing to Art 5 para 1 sentence 1 of the Basic Law.

19 b) In the case of the use of a picture in an advertisement ¿¿¿ as the appeal court has correctly assumed ¿¿¿ the general right of personality of the person depicted without his agreement will as a rule prevail over the interest of the person making the advertisement in publishing it (reference omitted). This is because being able to decide oneself whether and in what way one’s own picture is to be made available for advertising purposes represents a substantial component of the general right of personality. In this connection the predominant fact is admittedly that by using a picture the image or advertising value of the person depicted is exploited, and the impression is given that the person depicted identifies himself with the advertised product, or recommends or extols it (references omitted).

20 c) The appeal in law successfully contests the assumption by the appeal court that the recognisable advertising purpose leads to the claimant’s right of personality prevailing over the defendant’s freedom of opinion. In the case in question it is obviously not a question of transferring the claimant’s image or advertising value to the advertised service. Nor does the advertisement give rise to the impression that the claimant is recommending the advertised product. Admittedly this cannot on its own give grounds for saying that the claimant must put up with the use of his picture in an advertisement. Yet these facts, as well as the counter-interest of the maker of the advertisement in addressing a current political event by means of a satirical and mocking advertisement, lead to the claimant’s interest in preventing use of his picture in advertising being overridden.

21 The defendant takes the claimant’s resignation as finance minister as an opportunity for a satirical advertising slogan, It commercialises the person of the claimant as an introduction to praising its service but does not go beyond mere attention-seeking. Within the advertisement the claimant’s picture retains its relationship to the current political event which is the subject of comment. The advertisement uses a picture which is neutral in context and which by its size and arrangement is an integral part of the photographs of the other 15 members of the Cabinet included in the advertisement. These pictures are part of the defendant’s satirical comment on a current event which centres on the claimant. Even though the political comment is made in an advertisement, and is used by the defendant to direct attention to its leasing business, it is under the special protection of freedom of expression of opinion (Art 5 para 1 sentence 1 of the Basic Law). In this case the exercise of this freedom must prevail over the claimant’s interest in not being depicted in an advertisement without his permission. The advertisement merely affects the protection based in civil law, and not constitutional law, of the financial components of the right of personality (reference omitted). The non-material parts of the general right of personality, which on constitutional grounds are protected by the human dignity guarantee, are not affected in this case. Harm to the claimant’s reputation by the advertisement is not at issue.

22 5. The judgment under challenge must accordingly be quashed. As the matter is ready for decision, the claim must be rejected (¿¿ 563 para 3 of the Civil Procedure Code).

23 III. The decision on costs is based on ¿¿ 91 para 1 of the Civil Procedure Code.