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 information interest.
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 as admissible.
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 battle.
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