Who: Claus Weselsky, politicians, music producers, high-nobility and other celebrities
Where: Germany and European Court of Human Rights (Strasbourg)
When: February 2015
Law stated as at: 9 June 2015
From time to time advertisements are released which show well known persons or their names, without having asked them for their permission. In the course of the recent train conductor strikes in Germany, car rental company SIXT presented the trade union leader, Mr. Claus Weselsky, as “employee of the month” by using a large-format portrait picture of Mr. Weselsky.
SIXT (who is well-known for its mostly provocative advertisements) advertises regularly with portraits of famous people and thereby focusses on their actual – always rather unfortunate – situation in a mocking way:
Stolen car and resignation from ministerial position
In another case, the car rental company promoted for example that their rental cars are also available in Alicante, Spain. Immediately before that the fact became known that the official car of Ulla Schmidt, at that time the German minister of health, got stolen in Alicante.
Right after his inauguration as German minister of finance the then chairman of the Social Democrat Party, Oscar Lafontaine, stepped down. Thereupon SIXT Leasing announced through an advertising campaign that they also lease cars to employees during their probationary period.
Both advertisements displayed large-format portraits of the politicians.
Music producer and high nobility
Two other cases deal with advertisements of the cigarette brand Lucky Strike who used the first name of well-known German personalities to advertise their products. They also referred satirically to current events concerning these personalities (the publication of Dieter Bohlen’s book and Ernst August Prince of Hannover’s beating attack). Portraits were not used here.
These two gentlemen sued British American Tobacco for compensation in damages and – in the final instance – lost before the German Federal Court of Justice. Then they took legal actions against the Federal Republic of Germany before the European Court of Human Rights (ECHR).
The ECHR has now decided that the German Federal Court of Justice was right. The ECHR dismissed the complaints against the Federal Republic of Germany and approved the basic principles applied by the German Federal Court of Justice (ECHR, decisions of the 19th of February 2015, file no. 53495/09 and 53649/09).
Why this matters:
In Germany, you are generally only allowed to make use of portraits of a person with their permission. This is explicitly regulated by German law in § 22 German Art and Copyright Act (Kunsturhebergesetz, KUG) and especially applies to advertising. Also the name of a person is protected by law in § 12 German Civil Code (Burgerliches Gesetzbuch, BGB). By licensing these special personal rights famous people can earn a lot of money. On the other hand it is quite expensive to retain famous people as a promotional face and, therefore, it is especially attractive to find a way to save this money.
Use of names and images for advertising purposes without consent?
This is possible, if one fulfils the basic principles worked out by German jurisprudence. Therefore one has to weigh the interests of the advertising company and the public up against the interests of the affected person. Because not only the personal rights of the portrayed person are protected by law, certificated as fundamental rights in Art. 1 and Art. 2 of the German Constitution (Grundgesetz, GG,) and therefore have to be respected by the courts, but also the freedom of speech of the advertising company and the public’s interest in information which are certificated as fundamental rights, too (Art. 5 GG).
According to the settled case law of the German Federal Constitutional Court the protection of Art. 5 GG also includes commercial expressions of opinion and pure commercial advertising, which are judgemental and influential.
§ 23 Abs. 1 Nr. 1 KUG contains an explicit exception for the dissemination of portraits, if they belong to contemporary historical events. In this case the use of the portraits is permitted without the consent of the portrayed person, if it does not infringe her/his legitimate interests (§ 23 Abs. 2 KUG). Contemporary historical events not only include occurrences with historical-political meaning or spectacular and unusual incidents, but all questions of general interest.
Decisive for the use of names or portraits within advertisements is that the image value or the advertising value of the affected person is not transferred to the advertised product. The advertisement must not give the impression that the affected person recommends the product. This is not the case, if the analysis of current events happens to be ironical, satirical or even in a mocking way.
Following these principles German minister of finance, Oscar Lafontaine, failed with his action for payment (in the amount of DM 250.000,00) for the use of his portrait. Neither could Mr. Weselsky defend himself against the current use of his portrait nor claim damages because the use of his name and image was admissible. The ad was a current, ironic-satirical analysis of a contemporary historical event which neither transferred the image value or the advertising value of Mr. Weselsky to the product nor gave the impression that Mr. Weselsky recommended rental cars from SIXT.
Attention: risk of high claims for damages
Things will get very expensive if such a campaign goes wrong and does not comply with the principles allowing free utilization:
To calculate the damages one takes into account what the portrayed person would have got for entering into a corresponding contract with the advertiser. The former German minister of foreign affairs Joschka Fischer or former professional tennis player Boris Becker for example were awarded EUR 200.000,00 and EUR 1.2 million by the German courts for the utilization of their portraits in respective advertisements (for newspapers). It is not known if these amounts were actually paid or if the parties came to an extrajudicial arrangement with lower payments. Nevertheless these cases show what kind of compensation claims one should realistically expect when using famous people’s faces for a campaign without asking.
Creativity and speediness are decisive
The practical challenge besides the creative analysis of the theme is to produce and place the advertisement extremely fast to ensure that it is actually related to the current events.