The former governing mayor of Berlin, Klaus Wowereit, a member of the German Social Democratic Party, SPD, has suffered a legal defeat in his year-plus battle with the German publishing house Axel Springer. On 27 September 2016 (VI ZR 310/14), the German Federal Court of Justice ruled that pictures of Wowereit in a Berlin bar on the eve of a vote of no confidence against him could be published in Springer’s daily magazine BILD without the former mayor’s consent.
The Facts of the Case
With the caption “Before the vote of no confidence, he ended up in the Paris Bar…” (“Vor der Misstrauensabstimmung ging´s in die Paris-Bar …“), BILD published three pictures of Wowereit and some friends at Berlin’s Paris Bar, a well-known meeting place for VIPs and celebrities in Berlin, on 11 January 2013, the evening before a parliamentary vote of no confidence against him. The vote was initiated in response to increasing criticism over delays and cost overruns for the city’s new Berlin Brandenburg Airport. The pictures accompanied an article on Wowereit’s political career titled “From partying mayor to crash pilot” (“Vom Partybürgermeister zum Bruchpiloten“).
No Legitimate Interests of the Depicted Have Been Harmed
Upon the appeal by Springer, the German Federal Court of Justice dismissed Wowereit’s claim for a cease-and-desist order. The court ruled that the pictures were all part of the “sphere of contemporary history” (section 23 para. 1 no. 1 of the German Art Copyright Act) and, therefore, could be published by Springer without Wowereit’s consent (section 22 of the German Art Copyright Act). In connection with the press coverage of a significant political event (here, a vote of no confidence), the publication of photographs, while showing the then-governing mayor in a rather private situation, could be justified with serving the general public’s interest in political information. The contested publication also did not harm the legitimate interests of the depicted ex-mayor (section 23 para. 2 of the German Art Copyright Act). In view of what was happening in Wowereit’s political career at the time, Wowereit could not have expected to be shielded from the prying eyes of the press or the public.
This article was originally published on AllAboutIP – Mayer Brown’s blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.