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Case:
BGH NJW 1971, 698 VI. Civil Senate (VI ZR 95/70) VersR 1971, 465
Date:
26 January 1971
Judges:
Professor B.S. Markesinis
Copyright:
K. Lipstein

The plaintiff is an actress who participated in 1968 in the production of a film for sex education. In a printed sheet advertising the film her picture appeared on the back page in a close embrace with her partner. The defendant sells aphrodisiacs. In nos. 10, 11, and 23 of the 1969 issue of the periodical Stern the defendant published advertisements which contained a picture measuring 12 by 50 millimetres, the price (DM 24), and the defendant’s address together with the following text:

‘Paris love potion. The intimate means for men and women. A modern inducement to love. Overwhelming—seductive—irresistible. A few drops suffice for an immediate reaction’.

The picture included in the advertisement consisted of a partial reproduction measuring 12 by 35 millimetres of the above-mentioned picture of the plaintiff and her partner which figured in the printed sheet advertising the film. The plaintiff did not give her consent to the reproduction of her picture for the purposes of the defendant.

The plaintiff claimed DM 8000 as damages of non-economic loss. The court awarded the plaintiff DM 4000 in respect of non-economic loss and rejected any further claim. The Court of Appeal of Munich rejected the claim in its entirety. The Federal Supreme Court admitted a second appeal, quashed the judgment, and referred the case back to another Senate of the Court of Appeal.

Reasons

The plaintiff does not claim compensation for economic loss which she may have suffered because as a result of the unauthorized publication of her picture she failed to receive a fee. Instead, her claim is expressly for pecuniary compensation in respect of non-economic loss. This is undisputed by the parties. The Court of Appeal, too, proceeds from this assumption.

I. 1. Contrary to the Court of First Instance, the Court of Appeal has rejected the claim simply because it refuses as a matter of fundamental legal principle to award pecuniary damages in cases of violations of the right to personality as compensation for non-economic loss. The Court of Appeal acknowledges that in so holding it acts contrary to a constant and well established practice of the Federal Supreme Court.

2. As the Federal Supreme Court, and in particular this Senate, has consistently held, a person whose right to his personality has been severely violated in a culpable manner may demand pecuniary compensation for non-economic loss if it is otherwise impossible to compensate satisfactorily for the inflicted harm. The court has felt entitled and also bound in accordance with Art. 1 III of the Constitution to grant this extended remedy in order to take into account in the sphere of the protection of personality of the principles expressed in Arts. 1 and 2 I of the Constitution. The Federal Supreme Court has responded repeatedly to the attacks directed against this development of the law [references]. The observations in the decision appealed against which reproduce a summary of these opinions and adopt them in the result do not constitute a reason for this Senate to discuss this problem again in detail. Its practice, which has since become well established, will be maintained [references].

Other Senates of the Federal Supreme Court have also followed the same practice in principle [references], as has a considerable number of writers [references].

3. In so holding the consideration that an imperative need must exist for granting compensation of this kind is taken into account by two restrictions.

In the first place, the victim of an attack on his right of personality is not to be awarded pecuniary damages unconditionally and in all cases. Instead certain aggravating circumstances must exist if an imperative need is to be recognized for allowing the injured party at least a limited amount of compensation for his non-economic loss by awarding him pecuniary damages. This is only the case if the injury is to be regarded as severe [references].

Further, according to the practice of this Senate the victim of a severe culpable attack upon his right of personality can only demand payment of pecuniary damages by the tortfeasor if the harm which has been inflicted cannot be compensated sufficiently by other means [references]. The grant of a right to pecuniary compensation is based in essence on the idea that otherwise the right of personality would lack sufficient legal protection. In the light of this consideration, the right to pecuniary damages is to be postponed if the injury can be compensated sufficiently by other means; according to the facts of the case the right to demand an order to desist and in particular to retract—rights which have equally been developed by the courts by way of an extension of the law some time ago—may supply an adequate and suitable measure.

In this connection the Court of Appeal is of the opinion that it is sufficient if the victim can redress his injury by means of the other ‘remedies’ (Rechtspositionen) provided by private law, and it refers to the (prevention) injunction. This overlooks that the possibility of applying for an order to desist is directed, according to its purpose and function, against the future infliction of harm but does not affect harm which has already been caused. Moreover—and for this very reason—this possibility fails if there is no danger of repetition. The additional possibility of asking for a retraction is also not suitable in many cases of violation of the right of personality to provide sufficient compensation [reference]. This applies also when—as in the present case—a retraction cannot be considered having regard to the nature and the manner of the injury (by violation of the right to one’s own likeness).

4. In the limited circumstances mentioned above, an award of pecuniary compensation for non-pecuniary damage must also be considered in principle when the violation of the right of personality consists in an infringement of the right to one’s likeness, as is the case here [references].

5. For these reasons alone the decision of the Court of Appeal, which relied on the arguments set out above, cannot be upheld. Since additional facts must be considered and ascertained, this Senate cannot pronounce itself a final judgment in this matter.
II. The Court of Appeal, correctly having regard to its point of view, did not examine whether by this conduct the defendant has culpably violated the plaintiff’s right of personality (§ 823 I BGB) by violating the plaintiff’s right to her own likeness (§ 22 of the Act on the Copyright in Works of Art); nor did the Court of Appeal investigate whether according to the principles established by the Federal Supreme Court the existence of non-pecuniary damage suggests a claim to pecuniary damages.

1. The Court of First Instance held that the right to one’s own likeness had been violated. The defendant denied this in the proceedings before the District Court but did not argue this point before the Court of Appeal. There are indications that the defendant himself now admits that the plaintiff’s right of personality has been violated at least objectively. At any rate, the facts before this Senate are sufficient to permit the court below so to hold, at least initially.

(a) The court below will have to ascertain as a fact whether the plaintiff could be identified in the advertisement complained of. The circumstance that the partial reproduction was small in size does not exclude that the plaintiff’s features are visible and therefore recognizable [reference]. Even if in the present case the picture was published without appending a name, the features taken from the film and reproduced on the back of the sheet advertising it, which has a wide circulation (Film Kurier), can lead to the identification of the plaintiff. It suffices for a violation of the right of personality if the person represented by the picture has reasonable grounds for believing that, having regard to the manner of the picture, he can be identified [reference]. Thus this Senate has also stated [reference] that the person affected cannot be required to prove who of the many spectators—the reproduction of a picture in a cinema was in issue—had recognized him in the weekly review of events and had gained the impression that he was a murderer.

(b) It is undisputed that the plaintiff did not consent to the reproduction of her picture for the purposes of the defendant (§ 22 of the Act on the Copyright in Works of Art). It cannot either be disputed seriously in law that the reproduction in issue here was not included by the consent given to the producer of the film. This consent did not extend to a publication which merely served to advertise a product which is not connected with the film, moreover in a manner which violated the right of personality in a particularly harmful manner, as will be shown below. For this reason alone the plaintiff has not lost her entitlement to the rights arising out of such a violation, as the defendant has argued before the Court of First Instance, quite apart from the fact that in the present case her claim for compensation in respect of non-economic loss resulting from an invasion of the right to her personality is in issue.

The publication was also not lawful without her consent (see § 23 of the Act on the Copyright in Works of Art). Even if, as the defendant argued in addition before the Court of First Instance, the plaintiff was to be counted among the personalities of contemporary history—in the meaning of § 23 I, no. 1, of the Act on the Copyright in Works of Art, which need not be decided here, the publication by the defendant is not covered by this exceptional position. The anonymous picture of the plaintiff was not reproduced in her capacity as a personality of contemporary history, as the manner of the publication shows. The publication served exclusively the business interest of the defendant and not a justifiable need of the public to receive objective pictorial information [references].

Furthermore, § 23 II of the Act on the Copyright in Works of Art would create an obstacle. Even if he is a personality of contemporary history, the person whose picture is published can decide whether he is willing to allow his picture to be used as an advertisement for goods or for commercial services.

2. By reproducing the picture of the plaintiff her right of personality was infringed. The infringement is characterized, in particular, by the fact that the defendant used the plaintiff’s picture for the purpose of advertising, particularly in a denigrating manner. The publication in the form of a pictorial supplement to the advertisement for the ‘Paris love potion’ offered by the defendant could lead to the misleading inference that for a consideration the plaintiff had given her consent to an advertisement of this kind.

3. The Court of Appeal, correctly having regard to its point of view, has also not considered and determined whether an objective infringement of the plaintiff’s right of personality can be imputed to the defendant as a culpable act in the meaning of § 823 I BGB. When considering this aspect the court below will have to take into account the following:

Having regard to the previous decisions alone, the defendant, acting in accordance with the care required in mutual dealings, could not assume that he was entitled to reproduce the picture of the plaintiff without the latter’s consent [reference]. The main question is, however, whether the defendant has failed in his duty of care by omitting to ascertain that the plaintiff had given her consent before he reproduced the preview of the film. Generally speaking, a person who wishes to publish a picture of another must examine of his own motion the extent of his right to reproduce. Consequently, it can be stated with some certainty that, observing the necessary care in mutual dealings, the defendant should have enquired of the printers that supplied the matrix whether the plaintiff had given her consent [reference]. This would seem to apply even more so in the present case, where a photograph of a woman is employed to advertise an aphrodisiac potion.

However, even if the court below should come to the conclusion that the plaintiff’s right of personality has been infringed culpably and that therefore liability exists according to § 823 I BGB, the plaintiff is not entitled to a pecuniary compensation in respect of non-pecuniary damage as a matter of course and in all circumstances.

4. According to the practice of the Federal Supreme Court, and in particular of this Senate, as was pointed out before, the imperative need to grant the injured party at least a certain amount of compensation for non-pecuniary loss by awarding pecuniary damages is to be admitted in special aggravating circumstances. As this Senate has stated on several occasions, it must be examined in each individual case, having regard to the manifold possibilities of infringement of the right to personality, whether the injured party whose non-pecuniary loss cannot be compensated by other means is to be awarded pecuniary damages on equitable grounds. An affirmative answer can only be given if the violation is to be regarded as severe. The question as to whether it is to be treated as a severe invasion of personality as a separate protected interest can only be answered on the basis of all the facts of the individual case. For this purpose the manner and the severity of the harm inflicted and the degree of blameworthiness must be considered in particular, as well as the cause and the nature of the act. (Constant practice [references].) On this basis the results of the proceedings hitherto disclose that the following aspects may be significant for the court below in reaching a decision:

In order to assess the severity of the infringement it may be relevant that the plaintiff was associated with an advertisement for an aphrodisiac. The impression was created that against payment she allowed her person to be used for such an advertisement by means of her picture. This unfavourable impression was possibly increased by the fact that five additional advertisements by the defendant on p. 156 of Stern no. 11, where the advertisement complained of was published, make it clear to the reader that the defendant, as a mail order business also sells other sex appliances and explicit sex literature.

In this connection the contention of the plaintiff may also be relevant that she was known as a film actress and that she appears in the theatre in classical plays. The plaintiff has stated further that she had gone through an apprenticeship in classical works and that in the theatre where she had her first engagement she had played almost exclusively classical roles. In this capacity in particular she had also appeared as a guest in various theatres. The discriminatory (sic) publications had, above all, placed her guest engagements in jeopardy. Finally, the objective severity of the infringement may be gauged by the fact that the advertisement appeared in three successive issues of the magazine Stern which has a big circulation, and that therefore it became widely known.

As regards the degree of blameworthiness of the defendant—an affirmative finding in principle to this effect still remains to be made by the Court of Appeal, as was pointed out before—the Court of Appeal will have to consider whether the failure to make enquiries may not have to be regarded as negligent in the light of the special circumstances. The First Civil Senate has given an affirmative answer to this effect in [reference] and has characterized the blameworthiness of the defendant in that case as gross negligence. In this connection the statement of the plaintiff may assume additional relevance that by a letter dated 14 March 1969 written by her lawyer she had warned the defendant after the first advertisement had appeared on 9 March 1969, no. 10 of Stern.

The cause and the motive of the defendant in acting as he did were clearly egotistic commercial interest and not the satisfaction of a need deserving legal protection to provide information. It certainly does not exclude a finding that the infringement was severe in the meaning of the practice of this court.

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