Germany's Federal Court of Justice gives weight to celebrity consent to media image use

The Federal Court of Justice
in Karlsruhe

Shakespeare’s aphorism that all that glisters is not gold might well be borne in mind by fans and followers of celebrities. In two judgments issued on 21 January 2021 (as yet only available as press release summaries), Germany’s Bundesgerichtshof - or Federal Court of Justice - affirmed the personality and image rights of two celebrity plaintiffs whose images were used without consent. 

The “clickbait” case

The facts of Case I ZR 120/19 concern an online TV guide, which used images of four popular television presenters, including Günther Jauch, in a Facebook post on 18 August 2015. The page administrator wrote that one of the presenters was to retire because of cancer, with a link to an article which truthfully reported Roger Willemsen’s illness. Mr Jauch had not consented to the use of his image as “clickbait” - a lure to direct traffic from social media to the TV guide’s own site - and sought a ‘cease and desist’ order against the site as well as the payment of an appropriate licence fee of at least €20,000.

The “holiday lotto” case

Case I ZR 207/19 was brought by the actor Sascha Hehn, who played a cruise ship captain from 2014 to 2019 in the long-running German soap opera Das Traumschiff (the dream ship). Schemes, conflict and relationship drama are brought to a happy end in far-flung locations and on board the ship. Axel Springer AG’s best-selling Sunday tabloid Bild am Sonntag used his image to advertise a pay-to-enter competition, with the first prize being a “dream trip” on a luxury cruise, in a publication of 18 February 2018. 

Mr Hehn, whose real name was used in the spread, issued legal action, seeking the cease and desist of his image’s use, the provision of information, reimbursement of costs and finally, payment of an appropriate license fee for the promotional use. This was granted at first instance and upheld in a revised form on appeal. 

The Federal Court of Justice’s view

Although considered separately, both cases were decided according to identical provisions of German civil law. They also had near-identical appellate histories, being successful at first instance and on appeal. The Federal Court of Justice confirmed both appellate decisions, in favour of Mr Jauch and Mr Hehn, although in the latter case it dismissed the right to information claim. Instead, it suggested that Mr Hehn rely on publicly-available newspaper circulation figures maintained by the IVW, Germany’s circulation audit body.

The Federal Court of Justice held in both cases that Section 812 (1) sentence 1, case 2, and Section 818 (2) BGB (Bürgerliches Gesetzbuch) applied, which require the surrender or restitution of value of an unlawfully taken object - in this case, the property law right to determine the use of one’s own image. 

According to section 22 sentence 1 KUG (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie), a defence of subject consent is available, but inapplicable in both these cases. Section 23(1) KUG also provides for a defence where the image is used to portray contemporary history, but a balancing test is required between the private image right and the public right to receive the information. Section 23(2) KUG holds that consent to use of an image does not extend to use which violates an individual’s legitimate interest, of particular relevance to the distressing implication that Mr Jauch might have been diagnosed with cancer. 

When considering the balance between private and public interests, the Federal Court of Justice accordingly held in the first case that no legitimate issues were illuminated by the use of the image. Indeed, the clickbait style of the post verged on deliberately false reporting, which stands at the margins of justified media freedom. Nor did the use of the clickbait-generated advertising revenue to fund other journalistic expression legitimise the unauthorised use of the image.

In the "holiday lotto" case, the use of an image of Mr Hehn ‘in character’ meant that it was slightly dissociated from Mr Hehn himself. However, given that the context of its use did not contribute to the formation of public opinion, the image remained indisputably that of Mr Hehn, and his real name was used, the Federal Court of Justice affirmed the lower courts' placement of his personal interest higher than the editorial incentive to use it to attract attention to the competition. 

Comment

While both decisions concern private property rights in the use of one’s own image, the potential availability of the ‘contemporary history’ defence is situated within a similar justification to commentary such as the UK Leveson Report’s characterisation of media freedom of expression as a public right to receive information, rather than an outlet’s right to express it. This means that both men’s career choices do not vitiate their personal property rights in their own images, in keeping with Germany’s privacy-protective legal culture.