Publication of private football films on hartplatzhelden.de prohibited

The Higher Regional Court (OLG) Stuttgart has today, on second instance, decided the judgment of the Regional Court (LG) Stuttgart from 08.05.2008 (41 O 3/08) against the video portal hartplatzhelden.de. According to this, the operators are prohibited from making available (private) recordings of amateur football matches online or otherwise exploiting them. The proceedings were conducted by the Württemberg Football Association, which claims to hold the exclusive exploitation and licensing rights in the football matches.

The OLG Stuttgart thus follows the plaintiff's argument that the association should hold the exclusive marketing right in the football matches organised by it. It follows from this that the public accessibility of third-party-submitted private videos constitutes unfair competition imitation within the meaning of § 4 Nr. 9 UWG as well as an interference with the established and operated business operation within the meaning of § 823 Abs. 1 BGB, which can be appropriately prohibited accordingly. It therefore remains for the time being that the (business) model of Hartplatzhelden fails in German case law.

The judgment is not final and an appeal to the Federal Court of Justice (BGH) in Karlsruhe has been announced.

Addendum of 28.10.2010: The judgment was overturned on appeal by the Federal Court of Justice (BGH) – Judgment of 28.10.2010, Az. I ZR 60/09.

Conclusion

The judgment of the OLG Stuttgart is not only regrettable from a factual perspective, but also legally highly questionable and vulnerable to challenge. On the one hand, it is in no way clear why private film recordings should constitute an imitation of a sporting event. On the other hand, the court does not sufficiently distinguish between the possible prohibition of the making of such recordings via the right of entry (as has not occurred here) and their further dissemination. In any case, no exclusive rights with regard to the dissemination of privately-created recordings can be derived from the right of entry.

It is to be hoped that the announced appeal goes ahead and the Federal Court of Justice (BGH) sets matters right again (in the interests of the football enthusiasts).