Cologne Regional Court
Cologne Appeal Court
German Federal Supreme Court
After three years and as many court instances, the dispute between a German show promoter and the world-famous singer Tina Turner has been adjudicated. Turner lost in the last instance before the German Federal Supreme Court. She had sued an event company that, to promote a tribute show about her life and work, had published posters with Turner's name and a lookalike starring as the soul and pop singer.(1)
Turner's attorneys claimed that the posters violated her rights to her own likeness and name – since she had not consented to such use – and demanded injunctive relief. While the singer was proven right before the Cologne Regional Court, she lost before the Cologne Appeal Court. In the last instance, the German Federal Supreme Court finally upheld the judgment of the appeal court.
The German Federal Supreme Court held, in particular, that the use of the singer's likeness was covered by section 23(1)(4) of the German Artistic Copyright Act (KUG), which permits the dissemination or display of likenesses without the consent of the person depicted if it serves a higher artistic interest.
The decision shows that art relating to a famous person may be advertised with their likeness and name even without their consent, and thus more broadly than related merchandise. The public, however, may not be given the untrue impression that the person in question is participating or otherwise involved in the respective work of art.
The Cologne Regional Court examined the permissibility of the use of Turner's likeness on the posters in question against the standard of section 23(1)(1) of the KUG. This provision allows the dissemination and display of likenesses of persons from contemporary history without their consent.
The Court explained that a likeness within the meaning of this provision was a representation of a person that depicts the outward appearance of that person in a manner recognisable to third parties, without it being relevant whether the actual person or a lookalike is depicted.
The Court then emphasised that section 23(1)(1) of the KUG, as an exemption provision, could not be applied if someone, by publishing someone's likeness, did not satisfy an informational interest of the general public that is worthy of protection, but only sought to satisfy their own business interests by exploiting the likeness of another person.
Nevertheless, the Court recognised accurately that the posters in question were advertising measures covered by artistic freedom pursuant to article 5(3) of the German Constitution (GG). Advertising for a work of art is protected by artistic freedom, since this not only protects the actual artistic activity, the so-called "work area", but also the so-called "effect area", which grants the public access to the respective work of art.
Since, pursuant to section 23(2) of the KUG, the application of an exception to the consent requirement presupposes that no legitimate interests of the person whose likeness is concerned are violated, the Court had to weigh up the show promoter's artistic freedom against Turner's interest in not being associated with the tribute show.
As Turner is still alive and the posters did not indicate that it was a tribute show in which only a lookalike would perform, due to the similarity of the lookalike depicted on the poster and Turner, as well as the mention of her name, the Court held that the impression would be created, at least with a part of the audience, that Turner was in some way participating in the show.
The Court applied the same reasoning with regard to a violation of Turner's name right, and granted her request for injunctive relief.
In contrast with the Cologne Regional Court, the Cologne Appeal Court primarily took into account section 23(1)(4) of the KUG when considering whether an exception to the consent requirement exists for the use of a person's likeness. According to this section, the consent of the person depicted is not required if the dissemination or display of the image serves a higher interest of art.
The Court likewise emphasised for the case at hand that the scope of artistic freedom was applicable and that section 23(1)(4) of the KUG thus applied. The Court distinguished the present case from cases that do not fall under the protection of article 5(3) of the GG – namely, cases in which the likeness of a person was not used to advertise a work with which that person is associated, but merely to transfer the person's reputation to products not associated with the person.
In contrast with the Cologne Regional Court, however, the Cologne Appeal Court did not consider Turner's legitimate interests to be violated within the meaning of section 23(2) of the KUG.
The Cologne Appeal Court held that advertising the tribute show with the posters in question merely constituted an encroachment on Turner's social sphere, which was in any case less worthy of protection.
Furthermore, in the Court's opinion, there was no risk that the average recipient could infer from the posters that Turner herself would be involved in the show. In this respect, the Court held that the posters did not contain any untrue statements about Turner's participation in the tribute show. Neither had such statements been made explicitly, nor had such an impression been created in any other way. Therefore, for the average recipient, the posters merely presented a story about Turner told in whatever form. Further, Turner's fanbase in particular would be aware of the fact that, at the time of the publication of the posters, Turner's career had officially been over for more than 10 years. The Court expected that a return of Turner would be announced in a more appropriate manner than through the posters in question.
Moreover, the Court doubted whether Turner's right to her name had been affected at all by the use of her name on the corresponding posters. After all, the name had been used for advertising a show precisely about Turner. However, even if impairment was assumed, according to the Court, the same principles as for the infringement of the right to Turner's likeness would have to be applied for the weighing of interests of the parties.
Finally, the Court also considered the scenario that, due to the show promoter's recourse to artistic freedom, according to a partially advocated opinion, the EU General Data Protection Regulation (GDPR) would be applicable as a priority provision instead of the KUG. However, in the context of the weighing of interests of the parties pursuant to article 6(1) lit f of the GDPR, which is required in the absence of the plaintiff's consent (article 6(1) lit a of the GDPR), the Court explained that the same principles would have to be applied as within the scope of application of the KUG. In particular, there would be no difference between the scope of protection of the German fundamental rights and the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights that must be taken into account in the context of the GDPR.
The German Federal Supreme Court fully endorsed the reasoning of the Cologne Appeal Court and upheld its judgment. This means that the decision is now legally binding – a bitter blow for Turner, as the tribute show in question rivals "Tina – The Tina Turner Musical", allegedly the only Turner show officially authorised by the singer.
At the time of writing, the full text of the decision has not yet been published. The precise reasoning therefore remains to be seen.
Even if the decision of the Cologne Regional Court sounds justifiable, the reasoning of the Cologne Appeal Court, as followed by the German Federal Supreme Court, is ultimately more convincing.
It became clear in the legal dispute that the question of whether a lookalike would be perceived by the audience as the real Turner had to be strictly distinguished from the question of whether the audience would expect the real Turner to participate in the tribute show.
The advertising of a tribute show by featuring a lookalike and the name of a famous person is generally permissible without their consent, as long as the advertising does not invoke the inaccurate impression of the person's involvement in the show. Consent is required, on the other hand, if merchandise items – that is, items that are not the work of art as such – shall be advertised accordingly. The German Federal Supreme Court's ruling is thus in line with its well-known Marlene Dietrich case law.
For further information on this topic please contact Stanislav Lechzier or Holger Gauss at Grünecker by telephone (+49 89 21 23 50) or email ([email protected] or [email protected]). The Grünecker website can be accessed at grunecker.de.
(1) German Federal Supreme Court, ruling of 24 February 2022, docket number I ZR 2/21.