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Case Name: Herrenreiter / “Gentleman Rider” Key Words: Tort protection for severe infringements of personality rights Court: Bundesgerichtshof Country: Germany Citation: Entscheidungen des Bundesgerichtshofs in Zivilsachen 26, 349 Date: 14.2.1958 Case No.: I ZR 151/56 Importance: Recognition of personality rights as objects protected by tort law as “other rights” Facts: A well known distiller of spirits enjoyed horseback riding as a sport. He participated in several jumping tournaments. The press reported on his efforts. He did not object to being photographed during such events. In due course a company producing obscure drugs that purported to help male patients with sexual impediments used such a photograph of the so called Herrenreiter (gentleman rider) jumping with his horse to promote their products. The Herrenreiter sought injunction and compensation. Decision and Reasoning: German tort law, as a general rule, does not recognize damages of a non-pecuniary nature. 1. Personality rights as “other rights” in § 823 I BGB *§ 847 Civil Code (In 2002, this norm has been moved to another section due to a restructuring of the BGB) provided for an exception in relation to physical suffering, e. g. of a victim of violence. However, the relevant provision, *§ 823 I Civil Code protects specifically listed goods such as property and freedom as well as so called “other rights”. The *Bundesgerichtshof accepted personality rights as “other rights” in that sense, because *Art. 2 § 1 Basic Law specifically safeguards them. 2. Culpable intrusion In general, *§ 823 I BGB applies if an offender infringes a protected good culpably (wilfully or negligently). However, in the field of personality rights the court restricted the application of *§ 823 I Civil Code to cases of severe intrusions into personality rights. It was obvious that the gentleman rider would not have promoted the products of the defendant. Furthermore, these products touched the field of sexuality, and hence the inner core of human personality. To the court, this use amounted to a severe intrusion. 3. Damage In these circumstances even the Herrenreiter’s non-pecuniary damage was recoverable. Indeed, he had not argued that he had lost money because he had been denied the opportunity to earn money by means of a licence. On the contrary, he had stated that he never would have consented to such use. The *Bundesgerichtshof accepted this argument drawing an analogy to physical suffering as provided in *§ 847 BGB. 4. Result The *Bundesgerichtshof, hence, could easily issue damages in favour of the claimant. The Court established a Herrenreiter doctrine, that infringements into personality rights result in recoverable damage if a severe culpable intrusion had taken place.
Case Name: Mephisto (Klaus Mann / Gustaf Gruendgens) Key Words: Protection of Personality Rights post mortem Court: Bundesverfassungsgericht Country: Germany Citation: Entscheidungen des Bundesverfassungsgerichts 30, 173; Neue Juristische Wochenschrift 1971, 1645 Date: 24 February 1971 Case No.: 1 BvR 435/68 Importance: *Art. 1 § 1 and Art. 2 § 1 Basic Law protect personality rights. In Mephisto, the *Bundesverfassungsgericht found that the specific personality entitlement of Art. 2 § 1 Basic Law did not survive the death of the person concerned. However, the protection of human dignity derived from *Art. 1 § 1 Basic Law enables the courts to respect the honour of a dead person. Facts: During exile in Amsterdam in 1936, Klaus Mann, a well known German writer and son of Nobel prize winner, Thomas Mann, wrote a book called “Mephisto”, describing the life of a fictional actor called “Hendryk Hoefgen”. In a letter written in 1946 Mann had admitted that his former brother-in-law, the famous German actor Gustaf Gruendgens was portrayed as a character in the novel. Even without consideration of the letter, those concerned with the theatre in Germany would have understood the novel to draw a picture of Gruendgens. The novel alleged a close relationship between Gruendgens and the fascist regime. It portrayed him as a man without morals. In 1963, when Gruendgens and Klaus Mann were both dead, an editor wanted to publish the book in West Germany. Gruendgens’ heir sought a permanent injunction against the publication. The *Bundesgerichtshof as supreme court in civil matters granted it, holding that *Art. 1 § 1 and Art. 2 § 1 Basic Law protected human personality even after death, and that the book resulted in an assault on Gruendgens honour. Klaus Mann’s editor asked the *Bundesverfassungsgericht to judge on the constitutionality of this ruling. In a split decision the court upheld the injunction but differed in their reasoning from the *Bundesgerichtshof. Decision and Reasoning: *Art. 5 § 1 Basic Law expressly safeguards the liberty of speech while *Art. 5 § 3 protects the liberty of art. Novels, such as that by Mann, are covered by both constitutional provisions. This applies not only for the author, but also for the editor. *Art. 5 § 3 Basic Law, by comparison with *Art. 5 § 1, does not contain any express limits. The *Bundesverfassungsgericht decided that in this context, only a right of constitutional importance could outweigh a publisher’s rights. Both *Art. 1 § 1 and Art. 2 § 2 Basic Law thus constitute potential barriers of the freedom to publish. The *Bundesverfassungsgericht first considered, whether *Art. 2 § 1 Basic Law comprised the honour and personality of deceased persons. This provision explicitly protects the personality of human beings. On that point, the *Bundesgerichtshof had reasoned that the legal order had to respect personality rights post mortem. They reasoned, such post mortem protection affected persons already during their lifetime, just like the law of inheritance changes their financial transactions inter vivos. The *Bundesverfassungsgericht did not agree. They regarded a living person as prerequisite for the application of the personality clause in *Art. 2 § 1 Basic law. However, they applied *Art. 1 § 1 Basic Law to the facts. This provision safeguards human dignity as such. It is interpreted as the central norm of German law. The Court held that even the dignity of dead persons has to be respected. As far as the simple law protects human dignity, it can form a barrier to the freedom of arts. The Court, thus, had to decide, whether the book infringed human dignity disproportionately. In the light of this test (established by unanimous vote) one half of the judges decided that the human dignity of Gruendgens hindered the publication of the book, while the other half rated the freedom of art higher than the personality rights in question. According to German procedural law, in such a case the decision of the lower Court stands. Thus, the *Bundesgerichtshof’s decision to ban the book remained in force.
Case Name: Lebach Key Words: Reporting on criminal action: Right to privacy and its limits Court: Bundesverfassungsgericht Country: Germany Citation: Entscheidungen des Bundesverfassungegerichts 35, 202 ; Neue Juristische Wochenschrift 1973, 1226 Date: 5 June 1973 Case No.: 1 BvR 536/72 Importance: The Lebach decision established a right to privacy - a right to be let alone – while at the same time providing for limits on such entitlement. Facts: A gang of criminals had robbed a German army depot in the small Saarland town of Lebach, killing four servicemen. The chief conspirators were subsequently sentenced to life imprisonment while a minor accomplice, the getaway driver, received ten years imprisonment. Public TV operator ZDF planned a film about the crime which is seen as one of the most famous in German post-war history. The broadcast was scheduled to co-incide with the release of the driver. He sought injunction against the publication of his name and picture, claiming *Art. 1 § 1 and *Art. 2 §1 Basic Law entitled him to a right to be let alone, a right to privacy and a right to a new start after serving his sentence. The *Bundesverfassungsgericht concurred, but at the same time provided for limits on these rights. In the instant case, they upheld a partial injunction. Decision and Reasoning: According to the *Bundesverfassungsgericht, the personality right of *Art. 2 § 1 Basic Law guarantees every individual an ”autonomous space for the private formation of life, where one can develop and keep one’s individuality”. This comprises the right to “remain alone” to the exclusion of being exposed to others. Everybody is entitled to decide autonomously if and how far others may report on certain aspects of his private life. In substance this privacy right inter alia encompasses the portrait of a person, private facts and words uttered in private. Nevertheless, certain public interests may justify an infringement of privacy: Recognised are, for instance, the public’s right to information and the freedom of the press. However, the *Bundesverfassungsgericht defined the balancing test between both interests in such a way to give strong protection to personality rights as they can be found in the central provisions of the Basic law. The Court held that in those circumstances it has to be established in every single case why the public interest should have priority and whether the infringement was absolutely necessary to pursue the public interest goal, taking into account its intensity and scope. That way the Court developed a general balancing test that clearly sought to recognise and protect individual privacy rights. In the specific field of crime reporting, the Court weighed the public interest in publication against the criminal’s privacy rights. They said that the severity and time of the crime are of utmost importance. In the case of a recent crime of some severity, the publication rights, as a general rule, gain priority. In the case of a documentary ten years after a crime in the temporary context of a criminal’s release the publication must be such as not to harm his personality for a second time. Pictures showing the offender at the time of release or the announcement of his full name might hinder his re-integration into society and are, thus, prohibited. To this extent the claim of the driver against the ZDF film was well founded. Note: The same facts form the basis of another, more recent decision by the *Bundesverfassungsgericht, see *Lebach II.
Case Name: Volkszählung (Census) Key Words: Census, Right to Self-Determination concerning personal data Court: Bundesverfassungsgericht Country: Germany Citation: Entscheidungen des Bundesverfassungsgerichts 65, p. 1 Date: 15.12.1983 Case No.: 1 BvR 209, 269, 362, 420, 440, 484/83 Importance: The constitutional foundations of data protection and personality rights. The general right of personality as protected by *Art. 1 § 1 and Art. 2 § 1 Basic Law contains – as a general rule – an entitlement for the individual person to decide whether and to what extent to disclose personal facts. This right is based on the idea of human self-determination. It safeguards personal data against unrestricted: · collection · storage · use · transfer Infringements may be justified if there is a compelling general interest; if they are prescribed by a sufficiently precise statute; if the general notion of proportionality is adhered to; and if procedural measures have been taken to protect individuals against undue infringements. Facts: In a 1983 Statute, the Federal Government ordered a census on personal households and workplaces. This law served two independent purposes: Firstly, mostly anonymous data were needed for general state planning. Secondly, registration files (Melderegister) should be cross-checked. Personalised data were necessary for that. §2-§4 of the statute contained an exhaustive catalogue of data, which had to be disclosed by the persons named in § 5; in effect everyone. The census covered personal data such as name, address, telephone number, sex, birthday and family status. It also comprised questions on profession, level of education, salary and so on. Data on accommodation was also requested. §6 provided for ordinary citizens to assist the census as “counting persons”, i. e. unpaid government agents going to the houses and filling in the questionnaires. §10 placed a duty on all persons to answer the questions correctly and comprehensively. §9 (1) allowed a comparison to be made between the census data and the data of the local registration offices. §9 (2) and (3) further provided for a restricted transfer of individual data to certain state agencies, if the name was removed. Some individuals felt this law infringed their personal liberty: their personality rights. In a Verfassungsbeschwerde, i. e. an individual direct application against a statute, they called upon the *Bundesverfassungsgericht. The Court declared the Volkszählungsgesetz 1983 partially void, since it violated *Art. 2 § 1 Basic Law. Decision and Reasoning: In the decision, the *Bundesverfassungsgericht had to rule on different points. 1. Existence of a right to self-determination concerning personal data First the Court had to interpret *Art. 2 § 1 and Art. 1 § 1 Basic Law. They started with the argument that the value and dignity of a person, especially the right to self-determination, forms the centre of a free society. According to the Court modern developments and accompanying modern dangers for human personality argue in favour of a dynamic interpretation of the general law of personality, as protected by *Art. 2 § 1 read in conjunction with *Art. 1 § 1 Basic Law. In the age of electronic processing, even unimportant data can be combined through the use of a computer to draw a complete picture of a human personality. The imperative of self-determination however demands that every individual should be able to imagine what any other person knows about him. Furthermore no person should be deterred from making use of his basic freedoms fearing every activity might be stored in some official database. For these reasons the Court developed a specification of the general personality right as protected in *Art. 2 § 1, Art. 1 § Basic Law, i. e. the right to self-determination in questions concerning personal data. (Das Recht auf informationelle Selbstbestimmung) It protects the individual against collection, storage, use and transfer of his personal data. In principle it is for the individual to decide on these activities. 2. The limits of the right to data self-determination The Court acknowledged that the right is not granted without limitations. Since a human being, as a zoon politicon, is deemed to communicate and interact in society, there is no absolute right to decide on personal data. Indeed, some information may form part of a picture of social reality. The *Bundesverfassungsgericht thus accepted that the legislator, in defining measures of compelling general interest (überwiegendes Allgemeininteresse), can be justified in infringing this data protection right. Some preconditions for such a statute apply: a) The need for a precise statute It must be clear and precise. The citizen must be capable of understanding the conditions and scope of such infringements. b) The link between the goal of the statute and the collection of data The statute must define a specific goal. This goal must lie in the compelling general interest. The data collected must be used for this purpose. Use must be restricted to that purpose. No futile data may be collected. The stronger the personal value of some data, the stronger the justifications need to be. (This applies, e. g. to information on health conditions.). Anonymous facts can thus be used more easily, but the danger of re-personalization has to be taken into account. The data collection order has to take precautions against misuse. Finally, the law must be accompanied by procedural safeguards. The citizen is constitutionally entitled to complete information on the measure and to complete information on his stored data. Additionally he has a right to have to data deleted when the goal of the statute is fulfilled. A final necessary precaution is the establishment of officers independent from government to watch over the data use, i.e. a sort of ombudsman. (Datenschutzbeauftragter) c. Specific rules for anonymous statistics In a lengthy passage, the Court elaborated certain rules for the use of anonymised data in official statistics. As with personal data safeguards for the citizen must be included notably against misuse and re-personalization. The Court confirmed that in principle, such anonymous statistics may be used for scientific goals. 3. The application of these general rules to the Volkszählungsgesetz 1983 The *Bundesverfassungsgericht applied these general considerations to the Volkszählungsgesetz 1983. They concluded that a census is in general acceptable. Such a collection of anonymous data enables the government to further planning processes and is thus justified in compelling general interest. a) The substance of the data collection part The substance of the data collection part of the Volkszählungsgesetz 1983 in §2-5 met these conditions, since it did not draw a “total picture of personality”. Furthermore the law was sufficiently precise and proportionate. b) The procedure of data collection However, the *Bundesverfassungsgericht was not convinced that the procedural safeguards were adequate. There was insufficient information and there were no deletion provisions. Finally, the law was faulty in connection with the amateur collecting agents as they were sent to their immediate neighbourhood. The agents could learn about their immediate neighbours. That was unacceptable to the Bundesverfassungsgerichtt. c) Data transfer and combination provisions, § 9 Volkszählungsgesetz 1983 The Bundesverfassungsgericht were very concerned about the data transfer provisions in § 9 Volkszählungsgesetz 1983. Specifically, the approach of the statute which combined statistical inquiries with a crosscheck of registration office files. This was held unconstitutional. The tasks should not be combined. The Court held that in principle both a crosscheck of registration files and a statistical survey are acceptable. However they did not accept that combining information from both tasks was necessary where data in excess of that required for either of the tasks was generated. This exceeded the basic rule of restrictive data collection. 4. Executable Part of the Judgement Therefore, § 9 (1)-(3) Volkszählungsgesetz were held to be unconstitutional. The rest of the law was held valid, but considered subject to narrow interpretation and additional safeguards.
Case Name: Nena Key Words: Merchandising of memorablilia Court: Bundesgerichtshof Country: Germany Citation: NJW-RR 1987, 231 Date: 14.10.1986 Case No.: VI ZR 10/86 Importance: Merchandising of memorabilia subject to a license Facts: Without having first obtained a license, the defendant company had produced cups, T-Shirts and other memorabilia bearing the name “NENA” and photographs of the band called NENA. The name is also the artistic first name of their singer, Nena Kerner, whose photograph also appeared on the products. She was quite popular in Germany and is seen as one of the icons of the 1980s German song scene. Internationally, the song “99 Red Balloons” was popular and a No.1 hit in the US. Decision and Reasoning: The Case for the Bundesgerichtshof was straightforward. Using the photograph of an individual is, in terms of §22 Kunsturhebergesetz, subject to a licence. Use without first having obtained a licence is covered by tort law, § 823 BGB and unjust enrichment, § 812 BGB. The same provisions apply to the use of a person’s name. §12 BGB does protect such use, but is more limited in scope. However, Art. 2 (1) Grundgesetz is considered to protect those elements of the use of a person’s name that do not fall under s 12 BGB. The defendants argued that § 23 Kunsturhebergesetz would apply to their case. This provision justifies the use of portraits of well-known persons for certain purposes, notably press reporting on events of contemporary history. However, the Bundesgerichtshof does not consider that section applicable if the use of the portrait is for “advertising or commercial purposes only”. The word ‘only’ is considered fundamental. As soon as both the press privilege and the commercial interest apply at the same time, § 23 Kunsturhebergesetz exempts such use from a licence. This was so decided in the case of a collector’s medal mourning the death of Willy Brandt, which bore certain facts about his life. Thus a biography does not need a licence. The NENA merchandise, however, did not contain such information. It was made purely for commerce. Nena was therefore was awarded damages.
Case Name: Fuchsberger Key Words: Protection of commercial personality rights by means of unjust enrichment. Court: Bundesgerichtshof Country: Germany Citation: Neue Juristische Wochenschrift 1992, 2084 Date: 14.4.1992 Case No.: VI ZR 285/91 Importance: The use of a persons portrait was considered an enrichment in the sense of *§ 812 German Civil Code. This comes close to accepting this right as a property right. Unjustified enrichment was seen as a way, separate from tort, to pursue the property aspect of personality rights in court. Unlike the tort claim as established in the *Herrenreiter case, no severe intrusion is necessary to use this claim. Facts: Hans Joachim Fuchsberger is a well-known person in Germany. He used to host a popular game show and had some success as an actor, especially in Hitchcock films. As with most actors, he encouraged his agent to make several photographs available for free press use. One of these photos showed Fuchsberger at the opening of a clothes shop wearing glasses. Fuchsberger allowed the photographer to use the photograph to advertise the clothes shop (but nothing else). An association of opticians (unrelated to the shop) bought the photograph and transmitted it to its members. An accompanying letter announced that these pictures could be used for advertisements in the shop windows and in press advertisements. Fuchsberger had never consented to such use. A particular optician advertised six times in the local press using Fuchsberger’s photograph. Fuchsberger claimed compensation (DM 120.000~£40.000) for a potential licence from the optician, not from the association.
Case Name: Lebach 2 Key Words: Reporting on criminal action, Right to privacy and its limits Court: Bundesverfassungsgericht Country: Germany Citation: Neue Juristische Wochenschrift 2001, p. 795 Date: 25 November 1999 Case No.: 1 BvR 348/98 Importance: The 1999 Lebach 2 decision clarified the 1973 *Lebach judgment. In keeping with the general approach, it shows the limits of privacy. Some commentators felt the court had narrowed the scope of the decision taken in the original case. Facts: The facts of the case are the same as those in *Lebach: At the end of the 1960s a gang of criminals robbed a German army depot in the small Saarland town of Lebach, killing four servicemen. The major conspirators were subsequently sentenced to life imprisonment while a minor accomplice, the getaway driver, received ten years. In 1996, the private television operator SAT.1 planned a series of shows about historically important crimes in post-war Germany. The pilot film was dedicated to the Lebach murders. The film uses the new “docutainment” form, i. e. it has elements of a documentary (original news shows, interviews with police officers, etc.) and of an entertainment show (scenes played by actors). The planning of the attack, the murder itself, and the subsequent search by the German police are shown. It is explained at the start that the actual names of the criminals have been altered. At no point is their true identity revealed. Two accomplices sought an injunction in different regional courts due to their locations. In one case, the Saarbrücken *Landgericht and on appeal, the *Oberlandesgericht refused to grant the injunction. However in the other case the Mainz *Landgericht and, on appeal by Sat.1, the *Koblenz Oberlandesgericht granted the injunction. Both accomplices asked the *Bundesverfassungsgericht to hold the Saarbrücken judgments unconstitutional. They argued that after serving sentences of up to 27 years they had an absolute right to be let alone. The film showed the audience some negative aspects of their personality. Even if the names were not used, those who had the information could trace them. SAT.1 also called on the *Bundesverfassungsgericht. They thought that the freedom of the press was infringed by the Mainz and Koblenz decisions. The *Bundesverfassungsgericht decided both applications in favour of the TV station. Decision and Reasoning: The Court first examined Sat.1’s application. 1. Freedom of the press Contrary to the original *Lebach case, they had to construe the case starting with the freedom of the press and its democratic function. The *Bundesverfassungsgericht accepted that even shows in the nature of entertainment, i. e. “docutainment” enjoy the protection of Art. 5 Basic Law. The Mainz and Koblenz decisions infringed that right. (31) 2. Personality rights as defences against freedom of press rights In considering this juxtaposition, the personality right of *Art. 2 § 1 Basic Law forms a justification. It guarantees every individual an “autonomous space for the private formation of life, where one can develop and keep one’s individuality”. This comprises the right to “remain alone” and the exclusion of “any infringement by and of any exposure to others”. Everyone is entitled to decide autonomously if and how far others may report on his private life or on certain aspects of it. Substantively, this privacy right mainly encompasses the portrait of a person, private facts, and words uttered in private. At this point the Court left open whether the criminals in the instant case were covered by *Art. 2 § 1 Basic Law. (32) 3. The balancing test The facts of the case forced the court to perform its *Lebach test upside down: Contrary to the original, in the follow-up, SAT.1 argued the freedom of the press was infringed by the Rhineland-Palatine judgments, while the personality rights formed a defence to such state measure. But nevertheless, the *Bundesverfassungsgericht upheld the general balancing approach taken between an offender’s personality rights and the freedom of the press. Hence, it must be clarified as to whether the entitlement to be re-integrated into society as it is derived from personality privileges, is strongly infringed by the press report in question. (35) In instant case, the show neither mentioned the true name of the offenders nor did it show their portrait. Thus two of the main aspects of personal identity were not implicated. The only remaining conflict between press liberty and personality was the fact, that “their” story was told. Furthermore, people who knew their identity might again be confronted with their deeds. (39) In response the offenders argued that they enjoyed a right to be let alone with their story. The film would destroy all social contacts they had made after their sentence if people, knowing of their identity were confronted with the story once more. However, the *Bundesverfassungsgericht did not agree that the personality rights of *Art. 2 § 1, read in conjunction with *Art. 1 § 1 Basic Law could be construed so broadly. (36) They pointed out that the number of people able to identify the original claimants was very limited. Their re-integration would not be impeded. (40) The film in question enjoyed the protection of press and art since it drew a picture of the German society in the 1960s, and was thus more than just a story of the offenders’ lives. In such circumstances freedom of the press was regarded as more important. Thus the case re-iterated the balancing approach of the original *Lebach case but at the same time it altered the boundaries. The court stressed the importance of free reporting over personality and privacy rights of criminal offenders. It thus clarified the limits of personality rights in that area. The Lebach cases, read together, describe the state of German privacy law concerning reporting on criminal action. 4. Outcome The Sat.1 application was thus successful. The Rhineland-Palatine injunction was held to be unconstitutional. The application of the original claimants against the Saarland decisions was dismissed.
Case Name: Marlene Dietrich Key Words: Commercial exploitation of the life of a VIP: Personal property rights; protection post mortem; distinction between inheritable property rights and not inheritable moral rights Court: Bundesgerichtshof (Federal Supreme Court in Civil Matters) Country: Germany Citation: Entscheidungen des BGH in Zivilsachen 143, 214; Neue Juristische Wochenschrift 2000, 2195 Date: 1 December 1999 Case No.: I ZR 49/97 Importance: In the Marlene Dietrich case, the *Bundesgerichtshof established – in addition to the unjustified enrichment protection as decided in *Fuchsberger – full tort protection of personal property rights. Such entitlement is not subject to severe infringement if commercial personality rights are concerned. The court distinguished between free use of a personal name and story for art, press reports etc. and use subject to licence for commercial merchandising. Furthermore, they accepted that there is a commercial and inheritable layer of personality rights in addition and contrary to the moral aspects. Facts: In 1993, Lighthouse GmbH used the name and life story of German actress Marlene Dietrich for the production of a musical. Ms Dietrich had died one year earlier. They registered the trade mark “Marlene”. The musical was a flop but Lighthouse had profited from selling the right to other companies such as FIAT and Ellen Betrix to advertise using the mark and the picture of Marlene Dietrich. Furthermore, Lighthouse sold merchandise bearing the sign “Marlene” and pictures of the late actress. The company was later dissolved. The only child and heir to Marlene Dietrich alleged a breach of her mother’s personality rights. In a claim against the only former CEO of Lighthouse, she sought financial compensation for this use and an injunction against further use. A claim to delete the registered trademark was abandoned at first instance. The *Bundesgerichtshof decided on a revision in third instance. Earlier, the Berlin *Kammergericht had issued an appeal decision over a Berlin *Landgericht judgment. Decision and Reasoning: 1. Unjustified Enrichment The Bundesgerichtshof upheld the approach developed in the *Fuchsberger case: the concept of unjustified enrichment, as expressed in *§812 German Civil Code, entitles the owner of personality rights to claims against commercialisation without a licence. The problem in the instant case, however, was that Lighthouse GmbH, and not the defendant had made profits from the intrusion into Marlene Dietrich’s personality rights. The defendant was not “enriched”. The *Fuchsberger dogma thus did not provide a solution to the case. 2. Tort as reason for compensation The Court was thus drawn back to its older basis for monetary compensation of infringements of personality rights, i. e. tort law. a) Personality rights (name, picture) as goods protected by § 823 German Civil code As a general rule, German law does not recognise non-pecuniary damage as a ground for monetary compensation. *§ 847 German Civil Code (after 2002 reform 253 BGB) forms a rare exception for physical suffering. Yet, the main tort provision in the German Civil Code, *§ 823 I, is a semi-open general clause. It names certain legal goods such as property and freedom, the infringement of which leads to compensation rights in favour of the victim. It is semi-open because it also protects “other rights” in so far as they are of a similar nature to the ones named. In the light of *Art. 2 para 1 Basic Law, the *Bundesgerichtshof had accepted personality rights as “other rights” in that sense already in the *Herrenreiter case. Since that decision, severe infringements can lead to compensation claims. In Marlene Dietrich the Court relinquished the latter prerequisite for commercial use of personality rights. No severe damage to a person’s personality is necessary. It suffices if a wilful intrusion into the personal sphere of another person takes place by means of commercialisation. Such commercial personal property rights include a person’s name and picture. In the instant case, the Court found that Lighthouse and defendant had both used the name “Marlene” and a picture of Marlene Dietrich to market products of Ellen Betrix and FIAT and to merchandise certain products such as watches and cups. Even if the mere use of a first name in general would not be a sufficient link to an individual, the popularity of Marlene Dietrich and the context of the use implied an infringement of the name right. The use of the portrait of Marlene Dietrich is an infringement into *§ 22 Kunsturhebergesetz. These uses had occurred in a commercial context. *Art. 823 I BGB is thus applicable. b) culpable intrusion into these rights It is however a prerequisite that the intrusion was performed in a culpable way, that is that it is negligent or wilful. The Court found in that respect that the defendant as CEO of Lighthouse was at least a conspirator to Lighthouse’s intrusion in Marlene Dietrich’s personality rights. In contrast with unjustified enrichment, tort law recognizes such responsibility of joint authors. c) calculation of damage Finally, before compensation can be awarded, damage must be proved. According to the Court, such damage can be calculated in two different ways: a direct loss or the costs of a potential licence. In the latter case the Court has to establish the reasonable market price for the infringing use. In that respect it is unimportant whether the person concerned would have commercialised herself or not, as long the intruder has no valid licence. d) no defence The Court considered a number of implied defences. They accepted, that *Art. 5 para 3 Basic law, concerning freedom of arts, provided a defence for the use of a person’s name as does the freedom of the press and the entitlement of public to information. The musical “Marlene” was encompassed by this rule. The Court hence upheld the right to report on issues of personal contemporary history such as that of Marlene Dietrich. Such use, even if done for commercial purposes, does not need a licence. Yet the licensing of the Marlene trade mark by Lighthouse to FIAT and Ellen Betrix was classified as a pure commercial use, not linked to the freedoms of arts or the press. The Court left open, whether commercial use with a strong connection to the musical, for instance the sale of merchandise in connection with the musical could have been exempt from the ruling. The Court stated that the products concerned did not relate specifically to the musical. 3. Inheritability of commercial personality rights A final point of concern was whether the rights in question were transferable at all. In *Mephisto, the *Bundesverfassungsgericht had accepted that rights linked to human dignity can survive the death of the person concerned. However, they had denied that the constitution required post mortem protection of mere personality rights. This ruling, however, did not preclude the *Bundesgerichtshof from deriving such rights from civil, i. e. sub-constitutional law. Leaving open the transferability of such rights between living persons, they held that the commercial layer of personality rights is, at least, inheritable. The heirs therefore can control and licence every purely commercial use of the deceased person’s personality rights. On the other hand, the Court stressed that purely moral rights, as far as they are not protected by human dignity itself, are closely linked to the living person. The moral layer of personality rights, in these limits, was held not transferable and not inheritable. 4. Result The Court therefore granted a limited injunction against the defendant and ordered him to give information about the earnings made from the merchandise and the licensing. They made it quite clear that the claimant was entitled to compensation for purely commercial uses. Case Name: Kahn v Electronic Arts GmbH Key Words: character merchandising, privacy, sportspersons, video games, commercial personality exploitation Country: GERMANY Citation: Unreported, January 13, 2004, OLG Hamburg Date: 13 January 2004 Case Number: - JurPC WebDok. 113/2004 Importance: Use of the name and portrait of a person without having obtained the concerned person’s authorisation is unlawful. Such use would violate the concerned person’s justified interests if it was done with the sole purpose of profit making. Facts: The image along with the name of a popular German soccer player was used by the producer of a computer game ‘FIFA Soccer Championship 2004’ in the game as well as in advertisements displayed on television, in order to make the game more attractive to the public. The Court of First Instance issued an injunction at the soccer player’s behest. The defendant brought the present appeal. The point at issue between the parties was whether the use of the soccer player’s likeness constituted a ‘portrait’ within the ambit of Art. 22 of the German Artistic Authors Rights Act (which states that the distribution of a person’s portrait requires his consent). Assuming that the soccer player was a person in the public eye, what also needed to be determined was whether the unauthorised distribution violated his justified interests. Decision and Reasoning: The Court held the following: i. Advertising a computer game with the name and the portrait of a person without previously obtaining the concerned person’s authorisation is unlawful. ii. The unauthorised use of such a person’s portrait (in this case a pictorial presentation of the soccer player in the sense of Art. 23(1) of the German Artistic Authors Rights Act) violates his justified interests if it is done for the purpose of exploiting his personality with the basic aim of profit making. iii. Even if the soccer player was a person in the public eye( within the meaning of Art. 23 (1) , cl.1, of the said Act), in no way was he obliged to accept the commercial exploitation of his portrait as was done in this case (in the game and for advertising purposes). It was held that the soccer player’s right of self determination as enshrined in Arts. 1 and 2 of the German Basic Law prevailed. Result: The Court of Appeal in this case sustained the injunction granted by the Court of First Instance.
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