Duff, Dub or Flub? - on the misappropriation of the likeness of a golf professional

Herr Kaymer was 
not impressed

In a case with facts not too dissimilar to those of Rihanna v Topshop (see IPKat report here) and rapper Riff Raff (see IPKat report here) the Higher Regional Court of Düsseldorf recently decided that a well-known sports personality may prevent the unauthorized dissemination of "pop art style" portraits of his image.  Admittedly this case lacks some of the glamour of the aforementioned cases. 

The defendant had offered "pop art style" portraits of the well-known young German golf professional Martin Kaymer for sale on his (the defendant's) website as well as on an internet auction site. These portraits showed a photograph of the golf professional, which the defendant had created by altering the colour combination of photographs into pop-art style.  He sold one of these portraits online via an internet auction site achieving a rather humble sale price of €43.50.  The defendant argued that his portraits were meant to pay "tribute" to Mr Kaymer and that the dissemination of the portraits also served the "higher interest of art" as well as the information interest of the general public.

The Düsseldorf court, however, agreed with the first instance court and found that the defendant had infringed Mr Kaymer's right in his own image or likeness (which German law expressly protects in § 22 of the German Act on the Protection of the Copyright in Works of Art and Photographs (Kunsturhebergesetz)) resulting in an injunction and damages.  The court could not detect an overriding interest of art; this in particular since the portraits were mostly of a "decorative character" that did not show any artistic creation which went beyond pure craftsmanship.

Furthermore, the judges regarded the information value of the portraits as "very low" and found they primarily served the defendant's commercial interests. As such the judges took the view that the claimant's right to determine how his image may be used for commercial purposes outweighed the defendant's rights.

A common sense decision or should I say "a hole in one", in view of this Kat. The court's press release of 20 July 2013 can be found here. Duesseldorf Higher Regional Court, decision of 23 July 2013, reference I-20 U 190/12