The Higher Regional Court of Düsseldorf has recently handed down a decision concerning the image rights of a well-known sports personality. This case is rather similar to the Rihanna v Topshop
The Higher Regional Court of Düsseldorf has recently handed down a decision concerning the image rights of a well-known sports personality. This case is rather similar to the Rihanna v Topshop litigation in the UK, where Rihanna successfully won a passing off action against against Topshop by arguing that the retail store had misled consumers into thinking that she had endorsed the use of her image on T-shirts sold by Topshop which would cause consumer confusion and which would damage her reputation.
In this case, the Düsseldorf court held that the sports personality, Martin Kaymer (the German golf professional) may prevent the unauthorised use of pop-art style portraits of his image which were being offered for sale online. The portraits showed pop-art style photographs of the golfer, which the defendant had created by altering the colour combination of the images. The defendant had argued that the portraits were a tribute to the golfer and that the dissemination of the portraits also served the "higher interest of art" as well as the information interest of the general public.
The Court rejected this argument since the portraits were of a decorative character and did not show any artistic creation which went beyond pure craftsmanship. As section 22 of the German Act on the Protection of Copyright in Works of Art and Photographs expressly protects image rights, the Court found that the defendant had infringed Martin Kaymer's right in his own image or likeness. The golfer was subsequently awarded an injunction against the defendant and damages. Another point of note is that the Court regarded the information value of the portraits as minimal and found that they primarily served the defendant's commercial interests, which were outweighed by Martin Kaymer's right to determine how his image may be used for commercial purposes.
It appears that Martin Kaymer had an easier ride than Rihanna owing to the protection offered by the German Act on the Protection of Copyright in Works of Art and Photographs. Rihanna instead had to rely on a common law passing off claim, which can be notoriously difficult.
In this case, the Düsseldorf court held that the sports personality, Martin Kaymer (the German golf professional) may prevent the unauthorised use of pop-art style portraits of his image which were being offered for sale online. The portraits showed pop-art style photographs of the golfer, which the defendant had created by altering the colour combination of the images. The defendant had argued that the portraits were a tribute to the golfer and that the dissemination of the portraits also served the "higher interest of art" as well as the information interest of the general public.
The Court rejected this argument since the portraits were of a decorative character and did not show any artistic creation which went beyond pure craftsmanship. As section 22 of the German Act on the Protection of Copyright in Works of Art and Photographs expressly protects image rights, the Court found that the defendant had infringed Martin Kaymer's right in his own image or likeness. The golfer was subsequently awarded an injunction against the defendant and damages. Another point of note is that the Court regarded the information value of the portraits as minimal and found that they primarily served the defendant's commercial interests, which were outweighed by Martin Kaymer's right to determine how his image may be used for commercial purposes.
It appears that Martin Kaymer had an easier ride than Rihanna owing to the protection offered by the German Act on the Protection of Copyright in Works of Art and Photographs. Rihanna instead had to rely on a common law passing off claim, which can be notoriously difficult.