Günther Jauch, the host of the German version of the famous TV show “Who Wants to Be a Millionaire?” fought a battle through the instances that found a positive ending for him before the German Federal Court of Justice in March of this year, with the full decision published only recently (I ZR 8/07). The court had to decide whether Günther Jauch was entitled to payment claims because of the use of his picture on the front cover of a quiz magazine without his permission.

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The publisher had printed a picture of the famous TV host on the front cover of the magazine with the caption “Günther Jauch demonstrates with “Who Wants to Be a Millionaire?,” how exciting a quiz can be.” The magazine itself contained no further article or other contribution on the topic. Günther Jauch, who had not granted permission to use his image, demanded payment in the amount typically paid for granting consent to such use.

The previous instances had denied the claim, but the Federal Court of Justice reversed the decision of the Court of Appeal.

In deciding the case, the court had to weigh the plaintiff’s right of publicity, which also contains the right to one’s own likeness, against the freedom of the press. In the opinion of the Federal Court of Justice, the lower instances did not recognize that the plaintiff’s right to publicity outweighed the freedom of the press in this case. Images of famous persons may generally be used even without their consent if the contribution is linked to topics of interest to the general public. In this case, the caption of the image (the only contribution apart from the image itself) contains little to no informational value. It only creates a reason to include the host’s image on the front cover while at the same time benefitting from his high profile. Günther Jauch’s status and image are used to transfer the advertisement value of the plaintiff onto the magazine. In this situation, the balance tips in favor of the plaintiff’s right to publicity, in particular the right to his own likeness.

The Federal Court of Justice weighed the parties’ interests that are protected by the German Constitution. The informational content of the caption of the image had to be taken into consideration; if the information is only used as an excuse to create a reason to use the image of someone famous for advertising purposes, the interests meriting protection of the person concerned generally take precedence. The case was remanded to the Court of Appeals for determination of the amount of the plaintiff’s claim.