Prize draw advertising with celebrity photographs

Is it permissible for prize draw advertising featuring celebrity photographs to be used, without the consent of the depicted celebrity, to illustrate a press article? The Federal Court of Justice (BGH) had to answer this question.

Actor Sascha Hehn, known as the former captain of the ZDF 'Dream Ship', took action against a publisher. In February 2018, this publisher had printed a photograph in its Sunday newspaper under the heading 'Win cash and a dream voyage', showing the actor and two of his colleagues from the series in their respective roles. The actor's civil name was also printed beneath the photograph. The article following the image was substantively about a prize draw. Among other things, the grand prize – a 13-day cruise – was advertised.

Sascha Hehn had the publisher sent a cease-and-desist letter regarding the use of his image. Following the initiation of legal proceedings, the Regional Court (LG) Cologne ruled in favour of the actor's claim. After the publisher filed an appeal, the Higher Regional Court (OLG) Cologne upheld a violation of the actor's general right of personality. The publisher continued to seek dismissal of the claim and filed a cassation appeal against the judgment.

The Federal Court of Justice (BGH) ruling on prize draw advertising with celebrity photographs

The Federal Court of Justice (BGH) largely dismissed the cassation appeal. The BGH ruled that there was an unlawful interference with the actor's general right of personality.Judgment of 21.01.2021 – Az. I ZR 207/19 ('Urlaubslotto')The BGH decided that an unlawful infringement of the actor's general right of personality existed.

According to the BGH, an infringement of this right follows from the fact that the use of the photograph led to a certain image transfer from Sascha Hehn in his popular television series role to the grand prize of the competition. The defendant publisher had exploited the actor's recognition and popularity, as the court stated.

The use was undertaken without the consent of the actor. Without consent, the photograph could only be used if it constituted a photograph of contemporary history. This requires a balancing of the actor's interest in protecting his personality against the publisher's perceived public interest in information. The court found only a weak substantive connection between the plaintiff's image and the prize draw. In the overall balancing, according to the view of the Karlsruhe judges, the interests of the prominent actor prevail. Even taking into account the symbolism inherent in the disputed photograph, namely as a symbolic image for a cruise in the sense of a 'dream voyage', its use for a predominantly commercial purpose without a material contribution to factual debate infringes the actor's right of personality in an unjustified manner.

Furthermore, the BGH affirmed a violation of the general right of personality in the form of the right to one's own name. The publisher used Sascha Hehn's name through the prize draw advertising with celebrity photographs for predominantly commercial purposes. Because he was named only in the image caption, the name citation was inextricably linked to the use of the image. Therefore, according to the court's view, the balancing of interests must in each case lead to the same result.

Conclusion

Even a photograph with symbolic character showing a prominent person may not be used without restriction to illustrate a press article. Prize draw advertising with celebrity photographs without consent is therefore generally to be regarded as an infringement of personality rights.