The use of famous faces or names in advertising is a
well-established practice aiming at the transfer of goodwill
attached to, for example, a famous sports person or an actor, to
the advertised product. Sometimes advertisers even hire a star as a
testimonial for their products on a long-term basis, as Nespresso
did with George Clooney. Usually, there are licensing agreements in
place which make sure that the star is duly compensated for his/her
appearance in the advertisement.
Sometimes companies use images or names of public figures in
their advertising without seeking a license. Such advertisements
typically make a satirical reference to a current public debate, in
which the featured public figure is involved. This practice gave
rise to several legal actions. The case law of the German Federal
Court of Justice (Bundesgerichtshof - BGH) used to be quite strict
on this issue but became relatively liberal during the last few
years. In two decisions released earlier this year, the European
Court of Human Rights (ECHR) has approved the more liberal approach
recently taken by the BGH.
Under German law it is generally admissible to publish pictures
of a so-called "person of contemporary history" even
without that person's consent, provided such pictures have
"news character." This means that they must serve a
legitimate information interest. Until a couple of years ago, the
situation was different when the pictures' use served a
commercial interest. The BGH used to apply a doctrine according to
which advertisers generally did not have a legitimate interest to
use the photograph of a public figure for their own commercial
interest, irrespective of whether or not the photo also served an
In a landmark decision issued in 2007, the BGH deviated from
that strict view. Now each case has to be looked at individually.
It is required to strike a balance between the legally protected
interest of free expression on the one hand (which now also
includes commercial publications such as advertisements) and the
personality rights of the public figure on the other hand. If an
advertisement makes a satirical reference to a current public
debate and there is no indication that (i) the public figure
featured in the advertisement either endorses the advertised
product or (ii) the image of such public figure is to be
transferred to the advertised product, the BGH considers such use
Two cases decided by the BGH in favor of the advertiser based on
the above liberal doctrine have recently been approved by the ECHR.
The ECHR rejected the complaints filed against these judgments by
two German public figures whose names were used in advertisements
of a tobacco manufacturer without their consent (applications no.
53495/09 und 53649/09).
One case concerned the use of the first name of a famous German
music producer in a headline above the image of two cigarette
packages which read: "Look here, dear Dieter, it is so simple
to write super books" (English translation). A few words in
the headline were blackened (but still readable). Several months
before the release of the advertisement the music producer had
published a book, some passages of which had to be blackened
following court rulings. In the other case the two first names of
the husband of Princess Caroline of Monaco was used in the headline
"Was this Ernst? Or August?" (English translation) shown
above the image of a wrinkled package of cigarettes. Shortly before
the advertisement was released, the Prince was involved in a
violent altercation which was widely reported in the press.
The EHCR found that in both cases the BGH had struck a fair
balance between the tobacco manufacturer's freedom of
expression and the applicants' right to privacy by correctly
taking into account the following factors: (i) the commercial and
humorous nature of the advertisements, (ii) the context in which
they had been published, (iii) the absence of any degrading or
negative content concerning the applicants and (iv) the
applicants' prior public conduct.
These rulings approve the existing tendency in the case law of
the BGH to give greater credence to the advertisers' freedom of
expression in comparison to the personality rights of public
figures. However, Regional and Appellate Courts lack clear guidance
on what is admissible and what is not. The right balance in each
case will ultimately have to be decided by the highest German
courts, provided that a plaintiff is willing to fight this
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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