Sweepstakes and illegal image use

The “Bild am Sonntag” was not allowed to use a picture of the former “dream ship captain” as part of its “Holiday Lotto” campaign. Following a decision of the 15th Civil Senate of the Higher Regional Court of Cologne of 10.10.2019, it must also provide information on the printing requirement on the day of publication in order to prepare a payment claim.

The newspaper had asked its readers to take part in a competition via value-added service numbers, and it had raffled off tickets for a cruise among the participants. This was illustrated with three actors in ship uniform from the series “The Dream Ship” and among other things with the hint that the depicted will not be met on the cruise “although they will not meet. But just like on the real TV dreamboat, you will sail to the
most beautiful bays and the most exciting cities.

The 15th Civil Senate of the Higher Regional Court of Cologne has essentially upheld a decision of the Regional Court of Cologne, according to which this imaging was inadmissible without the consent of the person depicted. In the context of the individual assessment, the Senate noted that the image had just been used for commercial purposes. In principle, a competition
can still be classified as an editorial activity of a press organ. In the specific case, however, the image had hardly any real news value and the commercial use was in the foreground. The plaintiff’s popularity as a dream ship captain, as a “guarantor” for a dream trip, should also have been coloured on the main prize. In addition, the applicant’s image drew the attention of readers to the paid value-added service numbers, which provided for a certain refinancing of the competition.

The Senate did not accept the defendant’s argument that it was merely a “symbolic photo” for the promised dream trip. On that basis, the image of a footballer could also be used as a ‘symbol image’ for each competition in which tickets for a football match are to be won, in which the person depicted does not have to participate, even then. Such a broad understanding of a symbolic image would be able to largely erode the right to one’s own image of celebrities.

In the ruling, the Senate backed away from its earlier decision to publish a picture of a satirist. In the case there – unlike here – an opinion-forming (other) content was transported at the same time beyond the commercial use. The present case is more comparable to the use of a picture of a celebrity as clickbait(see my report here). Therefore, publication was inadmissible and, in principle, the defendant was required to pay the applicant the amount which would correspond to the usual licence for such photographs.

From a legal point of view, the Senate was unfortunately able to leave open whether the legal relationships of the parties were governed by German (Sections 22, 23 KUG) or European (Art. 6 sec. 1 GDPR) law, since in both cases a comprehensive balance of the conflicting interests and positions protected by fundamental rights, which must, in principle, lead to the same result.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.