Helene Fischer breathes a sigh of relief

The NPD must refrain from using the hit song "Atemlos" by Helene Fischer during its election campaign events. The singer prevailed in interim relief proceedings against the party and successfully obtained a prohibition on the reproduction of the song.

During the state election campaign in Thuringia in 2014, the NPD organised a so-called "Thuringia Tour 2014 – we help Thuringia", in the course of which events were held in public places. After a speech by the party chairman, he made himself available for conversations. During this time, music was played via loudspeakers. In addition to 15 other songs, the hit song "Atemlos" by Helene Fischer was also on the playlist. However, the singer was less pleased about this and felt that her right of artistic personality had been infringed. She therefore demanded that the NPD cease the reproduction of the song. After the LG Erfurt initially issued the order without oral hearing, this was revoked on the NPD's objection on the grounds that it could not be assumed that the impartial public hearing the song during the NPD event would assume that the singer consciously or tacitly participated in the NPD's election campaign or held views close to its political convictions. However, the Thuringian Higher Regional Court did not share this view.

Court decision in favour of Helene Fischer

By Urteil vom 18.03.2015 – 2 U 674/14 the OLG Jena confirmed the infringement of Helene Fischer's right of artistic personality and ordered the NPD to cease the conduct.

The party placed the recorded performance by Helene Fischer in the context of the political election campaign. It could not fall back on the position that the song had merely been played – together with a few others – as "filler" during breaks and had nothing to do with the political content of the event, but only served entertainment purposes. In the court's view, the reproduced music had served as "background music" for the party's appearance and that of its party chairman.

The character of the selected songs suggested a particular purpose within the context of the party's political event. For the reproduced songs were all in a certain sense "mood-setters", which were not only intended to generate a neutral feeling of entertainment, but also to reinforce a "positive feeling" or "we-feeling", or which had such a degree of popularity that they also exerted a certain attracting effect.

In the court's view, being placed in the context of a party-political (election campaign) event constitutes at least an indirect infringement of the right of artistic personality. Furthermore, there is a particular form of indirect infringement in the fact that the performance by Helene Fischer was used as an instrument for political election campaign purposes.

In the court's view, for the endangerment of the reputation and standing of the artist, it is sufficient that the association of affinity between the performing artists and the organiser cannot be ruled out at least by the general public.

Conclusion

If music is played in the course of election campaign events, the impression may be created among the public that the respective artist sympathises with the party. If this is not the case, the artist can successfully take action against it. Prior consent of the artist is recommended. In the present case, Helene Fischer would certainly not have consented even before the reproduction took place.