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Case:
BGH 1 ZR 285/99
Date:
11 July 2002
Translated by:
Mr Raymond Youngs
Copyright:
Professor B.S. Markesinis

Facts

The parties are in dispute about the reproduction of a press photo from the newspaper "Bild" in the magazine "Focus".

The claimant is the publisher of the newspaper "Bild". In its edition of the 9th November 1996, an article about a visit by Bild staff to Verona Feldbusch, at that time the wife of Dieter Bohlen, and a patient in a Hamburg clinic, appeared on the front page, continuing on page 6. The article contained an interview with Frau Feldbusch, which was reproduced verbatim and made the accusation that her husband had struck her, inflicting facial injuries. Next to the caption "Bohlen's wife - that's what he did to me" was a colour photo of Frau Feldbusch's face, which showed her with a black eye, a plaster and a dressing. The article had the following introduction: "I've thought long and hard about whether this photo should be taken. But I've decided that everyone should see it. A man should never do something like this to his wife. A man should never hit his wife".

The defendant published an article about the fight between Bohlen and Feldbusch in the 18th November 1996 edition of the weekly magazine "Focus". The heading ran: "Hitting rock bottom, they kissed and they hit each other: in the drama of the Bohlen and Feldbusch marriage, the last act has begun". It was reported in the article that a picture of Mrs Feldbusch with a swollen eye appeared on the front page of Bild, and she was reported as complaining "That's what he did to me". This article was illustrated by a scaled down extract from the front page of Bild. In this extract, next to the newspaper's title "Bild München", the headline "Bohlen's wife - That's what he did to me" and the photograph described above appeared. Below, it said: "Accusation in Bild: Verona Feldbusch blames Bohlen". After this, the upper part of the Focus article appeared in black and white:
[Details are set out]

The claimant in its capacity as proprietor of the use rights granted solely to it by the photographer has objected to the unauthorised reproduction of the photo, and claimed from the defendant an injunction and compensation in the sum of 2,733.85 DM plus interest.

The Landgericht granted the injunction against the defendant and ordered it to pay 2,500 DM plus interest.

The Landgericht rejected the rest of the payment claim. On the defendant's appeal, the Kammergericht altered the judgment and rejected the claim (reference omitted).

The claimant's appeal in law (which has been admitted) is directed against this decision and pursues the applications in the claim. The defendant applies to reject the appeal in law.

Reasons

I. The appeal court has denied a violation of copyright under §§ 97, 72, 16, 17 of the Copyright Act (UrhG) for the following reasons.

The publication of the photograph was permissible under § 50 of the Copyright Act. Focus, as a weekly magazine, essentially took into account matters of topical interest. The article contained a report about a topical event ie about the drama in the relationship between Bohlen and Feldbusch, as well as about Frau Feldbusch appearing on the front page of Bild with a black eye and complaining from her sick bed about what her husband had done to her. The event had only taken place a few days previously, and was therefore still current and of general public interest on the basis of the high media profile of Bohlen and Feldbusch. The photograph had not been the only object of topical interest. Focus had reported the details of what could be seen and read in Bild. In the course of the events which were reported, the photograph in question had actually been observable, which is a prerequisite of § 50 of the Copyright Act.

The extract was also reproduced to the extent which the purpose required. The report about the accusation made by Frau Feldbusch was in the foreground. On this subject, the defendant had reported the essential content of the interview in Bild and reproduced extracts from the Bild article. In this context the photograph could not be omitted: the caption "That's what he did to me" could not be understood without it. The publication of the photograph accompanying and illustrating the report about the fight between Bohlen and Feldbusch was justified by the interest in vivid and informative reporting.

II. The challenges made by the appeal in law to this judgment are unsuccessful. The appeal court has correctly rejected claims to an injunction and compensation under §§ 97, 72, 16, 17 of the Copyright Act, on the basis that the multiple reproduction and dissemination of the photograph in question which were the subject of complaint were justified by the restriction in § 50 of the Copyright Act.

1. The appeal court has correctly assumed that the photographer has the exclusive right of reproduction and dissemination of his photographs in accordance with §§ 72, 15 para 1 in combination with § 16 para 1, § 17 para 1 of the Copyright Act. According to the findings of the appeal court, which are free from legal error, the photograph in question originates from the claimant's employee B, who has granted to the claimant within the framework of his work relationship exclusive rights of use in the copyright and related protective rights acquired in fulfilling of his contractual duties in the course of his employment. A right to an injunction and a claim to compensation are available to the claimant as the person exclusively entitled to the use rights.

2. The appeal court has accepted, without infringing the law, that the reproduction of the photograph was permitted in the present case under §§ 72, 50 of the Copyright Act. Under § 50 of the Copyright Act, works which are observable in the course of events which are reported to the extent which the purpose requires may be reproduced and disseminated, amongst other things to report topical events by pictures in magazines which essentially take into account matters of topical interest. This restriction applies correspondingly for photographs protected under § 72 of the Copyright Act.

a) The appeal court has correctly assumed that § 50 of the Copyright Act is in principle to be interpreted narrowly, like all restricting provisions of §§ 45 ff of the Copyright Act based on social obligations in respect of intellectual property (references omitted). This is based primarily on the fact that the author should participate appropriately as far as possible in the economic exploitation of his works, and therefore the exclusive rights which he has in the exploitation of the work ought not to be excessively restricted. The restriction in § 50 of the Copyright Act takes account of freedom of opinion and freedom of the press, as well as the public's interest in information, and represents the result of a balancing, to be undertaken by the legislator and which is in principle conclusive, of two positions protected in constitutional law (reference omitted).

b) According to the findings of the appeal court, the news magazine Focus published by the defendant is a weekly news magazine which "essentially deals with matters of topical interest". This finding by the judge of fact is not challenged by the appeal in law.

c) The appeal court has correctly assumed that the Focus article in question in which the photograph was reproduced reported a topical event. This topical event is - as the appeal in law recognises - not the dispute between Bohlen and Feldbusch in general nor the actual fight alleged in particular, but the fact that Frau Feldbusch turned to Bild in a particular way with her accusations. This is because it is only this event which can be considered as a current event, in the course of which the published photograph has become observable.

aa) A topical event means any current happening which is of general interest for the public (references omitted). This is independent of the subject matter; it does not have to be an event from politics, culture, sport or business. Other events too, in which the general public has an interest, can be considered as topical events in the sense of § 50 of the Copyright Act. The Act gives priority within narrow limits to the constitutionally protected interest in information over the exclusive right of the author. But it does not evaluate this interest of the public in topical information. In particular, it leaves no room for a distinction to be made according to whether this interest related to events which are politically or culturally important, or events which are merely banal. A report is therefore privileged under § 50 of the Copyright Act even if - as in this case - it satisfies curiosity about the life of well known personalities and a need for gossip. The appeal court's reference to the fact that the fighting between Bohlen and Feldbusch (and therefore the accusation in Bild) was of general public interest on the basis of the couple's high media profile was therefore sufficient.

bb) The accusation made in Bild was still topical at the time of the appearance of the Focus article. An event is topical as long as a report about it is felt by the public still to be a report about something current (references omitted). This prerequisite is present according to the findings of the appeal court in this case, and they are free from legal error.

cc) The appeal in law unsuccessfully argues that the Focus article constitutes not a report about a topical event but an extensive background report with clearly ironical features. The decisive factor is that in the article in Focus which is at issue, the report about the topical event is unambiguously central, and does not merely serve as a peg on which to hang a more far reaching presentation not generated by the topical happening (reference omitted). If, however, a report includes the background of the current event, it still remains within the boundaries of a report privileged under § 50 of the Copyright Act. It is not only the matter-of-fact agency report, but also the report in which a topical event is examined by giving the previous history and by the opinions of third parties and is treated ironically - as the appeal in law in this case emphasises - which can amount to a report about topical events in the sense of § 50 of the Copyright Act. Under § 50 of the Copyright Act privilege attaches not only to a bare report of facts, but also a report including the background, evaluating and commenting, as long as the information about the factual events is in the foreground (references omitted).

d) The subject matter of the article in Focus which is at issue was not the picture of the injured Frau Feldbusch as such, but the accusation which she had made in the tabloid press. The response of the appeal in law to this is that no distinction could be made between the photograph and the written article: the accusation and the photograph were to be regarded as one whole. This cannot be accepted.

It is admittedly correct that § 50 of the Copyright Act only allows the reproduction of a protected work if it has become observable in the course of events which are reported on. On the other hand, a report which has the work itself as its subject matter is not privileged (references omitted). But in this case it is not a question of a report about the work as such. The photograph can be part of the topical event in question - the accusation in Bild - because the caption "That's what he did to me" refers to the photograph, and would hardly be comprehensible without it. But this does not change the fact that a distinction can and must be made between the photograph and the accusation made in Bild for which the photograph is meant to be evidence. The appeal court has correctly drawn attention to the fact that the article in Focus deals with the accusation, since it also quotes the other point of view from the circle of the accused husband's acquaintances.

e) Finally the appeal in law unsuccessfully contests the appeal court's view that the printing of the extracts from the article in Bild was covered by the purpose of the report. The appeal court has correctly referred to the fact that the content of the written article which is reported on in Focus refers to the photograph. This applies in particular to the caption ("That's what he did to me"), which is hardly comprehensible without the photograph. The fact that the photograph was reproduced completely and in colour is not inconsistent with the applicability of § 50 of the Copyright Act. § 50 of the Copyright Act does not contain any limitation to the effect that works may only be made observable in a fragmentary way or only in connection with another event which has become topical (reference omitted). The only decisive factor is whether the reproduction keeps within the scope of the privileged purpose. This prerequisite is fulfilled in this case. There are therefore no objections to the photograph in question being published in the form in question so far as the defendant is concerned.

III. The claimant's appeal in law must therefore be rejected with the costs consequences under § 97 para 1 of the Civil Proceedings Order.

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