Copyright dispute relating to "Ascot" photograph: will a Munich model now receive "100,000 Euros for her boobs"?

Ahh, I thought this header might get your attention, it certainly caught mine when looking at today's offering of German tabloid Bild, especially since I arrived at the website after clicking on a link including the reference: "delicate legal dispute relating to Gunter Sachs photograph".

What has happened?  German media, serious broadsheets and tabloids alike (see here, here, here and here), are reporting of a rather unusual dispute relating to the creative contribution of a model, who had been depicted in a 1995 photo composition by the late eccentric German and Swiss photographer, author, industrialist, astrologer Gunter Sachs and former husband of Brigitte Bardot.

The photo can be found here.

The claimant in this dispute, which is pending at Munich’s Higher Regional court, is Munich based former model Kirsten Klie, ex wife of a well-known photographer. The photograph in question, called “Ascot”, shows beautiful Klie bare-chested (thus the unusually keen interest from Germany’s tabloids into what is basically a copyright dispute), in a mostly unbuttoned white blouse, wearing a hat and binoculars.  The photograph was successfully auctioned at Sotheby’s in 2012 for a net price of 204,691 Euro.  The defendants are representation the estate of Mr Sachs and are the executors of his will.  They see things differently and would prefer not pay.

Klie argues that she had “creatively advised” Sachs during the photo shoot and that he acknowledged her co-creatorship and had contractually granted her a 20% share in all profits made from “Ascot”. She also argues she creatively contributed to the choice of outfits and accessories, suggested to use digital techniques on the image and make it into a composition and collage style photograph, , etc.  Indeed, Mr Sachs had paid her a 6,000 German Marks share in profits (royalties) in 1997.  He also included a personal note to her in a 2008 book he authored and which included the “Ascot” photograph stating: “A little gift for a huge contribution”. “Ascot will certainly provide us with the stardust, we hope for, in times to come”.  Both parties also had a contractual agreement, which had been drafted in rather medieval German by the eccentric Mr Sachs, but which appears to have stated – albeit in a convoluted way – that Ms Klie was meant to receive to receive royalties into the start of the next millennium.

The lower court, the Regional Court of Munich, had already decided in favour of the claimant and against and awarded her about 41,000 Euro earlier this year. They disagreed with the defendants that the contract was only meant to last until the “turn of the millennium” and that Ms Klie had not been creatively involved.  On appeal by the defendants the Higher Regional Court now, according to news reports, suggests a settlement of the dispute.  A one off lump payment of 100000 Euro for Ms Kies who in turn will no longer receive any further royalties from a potential future commercialisation of the photo. 

The defendants reportedly have two weeks to decide whether they wish to accept: or as German tabloid Bild has titled its report: "[Will the] model now receive 100,000 Euros for her boobs?"