Simply the Best – The Tina Turner Story: A Tale Through Three Instances
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, published posters with Turner’s name and a look-alike starring as the soul and pop singer (German Federal Supreme Court, ruling of February 24, 2022, docket number I ZR 2/21).
Turner’s attorneys claimed that the posters violated her rights to her own likeness and name since she had not consented to the corresponding 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 Sec. 23 Para. 1 No. 4 of the German Artistic Copyright Act (KUG) which permits the dissemination or display of likenesses without the consent of the person depicted, if this 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.
But one thing at a time.
The Regional Court of Cologne Ruling: A Stage Victory for Turner
The Regional Court of Cologne examined the permissibility of the use of Turner's likeness on the posters in question against the standard of Sec. 23 Para. 1 No. 1 KUG. This provision allows the dissemination and display of likenesses of persons from contemporary history without their consent.
The first instance 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 recognizable to third parties, without it being relevant whether the actual person or a lookalike is depicted.
The Court then emphasized that Sec. 23 Para. 1 No. 1 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 seeked to satisfy own business interests by exploiting the likeness of another person.
Nevertheless, the Court recognized accurately that the posters in question were advertising measures covered by artistic freedom pursuant to Art. 5 Para. 3 of the German Constitution (GG). Advertising for a work of art is protected by artistic freedom, since this does not only protect 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 Sec. 23 Para. 2 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 is a "tribute show” in which only a lookalike performs, due to the similarity of the lookalike depicted on the poster and Turner as well as due to the mention of her name, the Court held that the impression would be created, at least with a part of the audience, that Turner is 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.
The Cologne Appeal Court Ruling: No Legitimate Interests of the Superstar Violated
In contrast to the Regional Court, the Appeal Court of Cologne primarily took into account for its decision Sec. 23 Para. 1 No. 4 KUG when considering whether an exception to the consent requirement exists for the use of a person's likeness. According to this, the consent of the person depicted is not required if the dissemination or display of the image serves a higher interest of art.
The Appeal Court likewise emphasized for the case at hand that the scope of artistic freedom was applicable and that Sec. 23 Para. 1 No. 4 KUG thus applied. The court distinguished the present case from cases that do not fall under the protection of Art. 5 Para. 3 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 to the first instance, however, the Appeal Court did not consider Turner's legitimate interests to be violated within the meaning of Sec. 23 Para. 2 KUG.
The Appeal Court held that the advertising of 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 Appeal Court's opinion, there is no risk that the average recipient could infer from the posters that Turner herself would be involved in the show. In this respect, the Appeal 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 fan base in particular would be aware of the fact that, at the time of the publication of the posters, Turner's career had already been officially over for more than 10 years. The Court expected a return of Turner to 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. But even if one assumed an impairment, according to the Appeal 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 Appeal Court also played out the scenario that if, due to the show promoter's recourse to artistic freedom, according to a partially advocated opinion, the 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 Art. 6 Para. 1 lit. f) GDPR which is required in the absence of the plaintiff's consent (Art. 6 Para. 1 lit, a) GDPR), the Appeal 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 in scope 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 Ruling: No Turn in Favor of Turner
The German Federal Supreme Court fully endorsed the reasoning of the Appeal Court of Cologne 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 authorized by the singer.
At the time of writing this blog entry, the full text of the decision had not yet been published. The precise reasoning therefore remains to be seen.
Even if the decision of the first instance sounds justifiable, the reasoning of the Cologne Appeal Court, as followed by the German Federal Supreme Court, is ultimately more convincing.
It becomes clear in the legal dispute that the question of whether a lookalike is perceived by the audience as the real Turner must be strictly distinguished from the question of whether the audience expects the real Turner to participate in the "tribute show".
The advertising of a “tribute show” by featuring a look-alike 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, i.e. 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.
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