- Marlene Dietrich Case BGH 1 ZR 49/97
- 01 December 1999
- Translated by:
- Raymond Youngs
- Professor Basil Markesinis, Always on the Same Path and Essays on Foreign Law and Comparative Methodology, Hart Publishing 2001
a) The general right of personality and its special manifestations, like the right to one's own picture and the right to one's name, protect not only non-material but also commercial personality interests. If these components of the right of personality which are of financial value are culpably infringed by an unauthorised use of a picture, name or other characteristic feature of the personality, the holder of the right of personality is entitled to a claim to compensation for harm, independently of the severity of the interference.
b) The components of the right of personality which are of financial value remain after the death of the holder of the right of personality, at any rate as long as the non-material interests are still protected. The corresponding powers pass to the heir of the holder of the personality right and can be exercised by him in accordance with the express or presumed will of the deceased.
BGH, judgment of 1st December 1999 - 1 ZR 49/97 - Kammergericht LG Berlin
The claimant is the only child and sole heir of the actress Marlene Dietrich, who died on the 6th May 1992. She is also the executrix of her mother's estate.
The first defendant ("the defendant") produced a musical on the life of Marlene Dietrich in 1993. It had its première at the beginning of April 1993 in Berlin and was performed to start with until the end of May 1993 under the title "Tell me where the flowers are" and then until the end of June 1993 under the title "Marlene". There were no further performances of the musical, which was not very successful. The defendant was the sole manager of the Lighthouse Musical Production Company Ltd ("Lighthouse Musical"), which no longer exists. He is the owner of trade mark no. 2022193 "Marlene" which, following an application in June 1992 was registered in the same year for, amongst other things, the development, production and performance of literary and / or musical entertainments for stage and film. The claimant has already withdrawn at first instance an application to extinguish this trade mark.
Lighthouse Musical granted to FIAT Automobil AG - in accordance with a confirmatory letter by the defendant of the 23rd June 1993 - rights to the production and marketing of two hundred models of the special Lancia type Y 10 "Marlene" and allowed it in particular to use the signature "Marlene", a picture of Marlene Dietrich from the year 1930 and the registered trade mark "Marlene". In return, FIAT advertised for the musical in accordance with the agreement when displaying the vehicle. It offered the Lancia special model "Marlene" with considerable advertising expenditure and sold a hundred of the vehicles.
In the programme for the performance of the Musical "Tell me where the flowers are", a doublesided advertisement for the Ellen Betrix enterprise was printed, advertising cosmetics under the heading "the Marlene Look" and using a drawing of Marlene Dietrich. In return for this, the enterprise made available all the make-up materials for the performance of the musical to a value of 2,000 to 3,000 DM.
Lighthouse Musical also arranged for numerous so-called promotion articles (telephone cards, mugs, T-shirts, watches and badges) and postcards to be produced, which were provided with a picture of Marlene Dietrich and - with the exception of the badges - with the original title of the musical "Tell me where the flowers are". These objects were offered for sale in June 1993 at a stand in front of the theatre.
The claimant is claiming from the defendant injunctive relief, a declaration of his duty to compensate for harm and provision of information in respect of the use of the picture, name and signature of Marlene Dietrich, on the basis of her own rights and her legal status as executrix for the estate of her mother. She considers that the claims she is making arise from infringement of the posthumous personality rights of her mother. She has also based the claims she is making on the rights of the American law enterprises Marlene Inc and M Dietrich Inc which have been transferred to her.
The claimant in the end applied - insofar as it is still of importance for the decision on the appeal in law -
1. for the defendant to be ordered under threat of punitive measures (Ordnungsmitteln) to refrain from:
a) using the name Marlene for the purpose of the advertising and / or labelling of goods by way of business and / or letting the name be used in connection with the person, life and work of Marlene Dietrich;
b) producing, and / or offering and / or disseminating objects of a commercial kind by way of business which are provided with pictures of Marlene Dietrich and / or letting them be produced and / or offered and / or disseminated;
c) producing, and / or offering and / or disseminating objects of a commercial kind by way of business which are provided with a handwritten signature of Marlene Dietrich by her first name and / or letting them be produced and / or offered and / or disseminated;
if these actions at a) to c) do not in each case occur within the framework of an artistic analysis of Marlene Dietrich or the interests of the general public in information about Marlene Dietrich as an absolute person of contemporary history;
for the defendant to be ordered to refrain, in order to avoid punitive measures (Ordnungsmitteln) being taken, from
a) allowing third parties to use pictures of Marlene Dietrich and / or to use pictures of Marlene Dietrich together with her handwritten signature and / or the name "Marlene" for the labelling of goods or commercial services and in advertising for goods or commercial services;
b) disseminating written material which contains advertisements by enterprises in which goods and commercial services are advertised by use of the name "Marlene" and a pictorial representation of Marlene Dietrich;
c) offering goods for sale, letting them be offered, disseminating them or letting them be disseminated, on which there is a picture of Marlene Dietrich, if the goods contain no additional verbal or symbolic information about the person, life or impact of Marlene Dietrich;
2. for a declaration that the defendant must compensate her for all harm which she has suffered so far from the actions from which he is to refrain and which she will in future suffer or that the defendant must hand over the enrichment he has obtained;
3. further that the defendant be ordered to give information to her about the extent of the actions causing harm which correspond to the requirements of the injunctions
a) by submission of a list of all sales which he has made by giving licences in the trade mark no. 2022193 "Marlene" or by other exploitation agreements about using the designation Marlene, arranged by calendar quarter years, giving the names and the complete addresses of the licensees, the content of the exploitation agreements, their length and the sales made by the individual licensees;
b) by submission of a list of the goods and services made and / or brought into circulation by Lighthouse Musical and / or by him insofar as they are provided with the designation or the name Marlene or Marlene Dietrich, with a picture of Marlene Dietrich and / or with her handwritten signature Marlene, giving:
aa) an exact description of the goods and / or services concerned;
bb) the number of items manufactured and sold;
cc) the name and address for service of the manufacturer;
dd) the sales made by the marketing or the carrying out of the service arranged by calendar quarter years;
c) by submission of a list of sales which Lighthouse Musical and / or he himself have made by giving licences in the name or the designation Marlene or Marlene Dietrich, in pictures of Marlene Dietrich and in her handwritten signature Marlene, giving the names and complete addresses of the licensees, the content of the exploitation agreements and their length, and the sales made by the individual licensees.
The defendant has defended the claim. He is of the opinion that any possible invasion of the general right of personality of Marlene Dietrich by advertising measures for the musical is covered by artistic freedom. Besides this, an infringement of posthumous personality rights could not be the basis of any claims to compensation for harm, because these rights only protected non-material interests.
The Landgericht granted the application for injunctive relief in the form of the main application, and rejected the claim in other respects. In response to the appeal against this decision lodged by both sides, the Kammergericht - rejecting the appeal in other respects - allowed the application for injunctive relief in the form of the alternative application with limitations (reference omitted), and ordered the defendant, under threat of punitive measures (Ordnungsmitteln), to refrain from:
a) Allowing third parties to use pictures of Marlene Dietrich and / or to use pictures of Marlene Dietrich together with her written signature and / or the name "Marlene" for labelling goods or commercial services or in advertising goods or commercial services, if this occurs as in the agreement between Lighthouse Musical and FIAT Automobil AG in accordance with the defendant's letter of the 23rd June 1993;
b) Disseminating written material which contains advertisements of enterprises in which goods or commercial services are advertised using the name "Marlene" and a pictorial representation of Marlene Dietrich, if this occurs as with the advertising of cosmetics by the "Ellen Betrix" enterprise in the programme for the performance of the musical "Tell me where the flowers are".
c) Offering goods for sale, or letting them to be offered, disseminating them or letting them be disseminated, on which there is a picture of Marlene Dietrich, if the goods contain no additional verbal or symbolic information about the person, life or impact of Marlene Dietrich or advertise for works of art which concern Marlene Dietrich.
The Senate has accepted for decision the claimant's appeal in law against this decision only insofar as the claimant is not suing on the basis of a transferred right. Within the scope of this acceptance, the claimant is pursuing the applications ultimately lodged by her. The defendant applies for the appeal in law to be rejected.
The appeal in law is unsuccessful insofar as it objects to the appeal court only allowing the claim for injunctive relief in the limited form of the alternative application. It is however successful insofar as it is directed against rejection of the claim for a declaration and information.
Within this scope the appeal in law leads to quashing of the judgment on appeal and to an order being made against the defendant.
I. The application for injunctive relief:
The appeal in law unsuccessfully objects to the appeal court dismissing the application for injunctive relief in the form of the principal application because of lack of certainty, and only allowing the application for injunctive relief in the form of the alternative application with limiting additional words.
1. The appeal court held the application for injunctive relief in the form of the principal application as granted by the Landgericht to be too uncertain, because the limiting subordinate clause
"if these actions at a) to c) do not in each case occur within the framework of an artistic analysisof Marlene Dietrich or the general public's interests in information about Marlene Dietrich as an absolute personof contemporary history"
shifts the dispute about the scope of the prohibition to the enforcement proceedings in an impermissible manner. Contrary to the view of the appeal in law, this assessment shows no error in law.
The use of concepts which need interpretation in a head of claim and in the wording of a judgment is certainly not simply impermissible. It can be accepted if no doubt exists about the meaning of the concepts or expressions used, so that the scope of the application and judgment is certain. But the position will be different if dispute exists between the parties on whether the conduct objected to falls within a concept which needs interpretation. In this situation the questionable concept cannot be used in the formal judgment, because otherwise the dispute to be settled in the proceedings for resolving it (Erkenntnisverfahren) would be shifted to the enforcement proceedings (constant case law; references omitted). This is the situation present here. The parties are disputing about the conditions under which actions described generally in the principal application under a) to c) could take place in the context of an artistic analysis of the person of Marlene Dietrich. It is precisely the question of when consideration of Marlene Dietrich's personality is governed by artistic interests and when it is governed by business interests which is in dispute between the parties. Whilst the claimant thinks that the behaviour objected to is exclusively for the pursuit of gain, the defendant takes the view that the actions which are being challenged are only to advertise the musical and are therefore indirectly artistic analysis of Marlene Dietrich's character.
A fact-based decision on the principal application could in these circumstances merely explain by reference to the party's case and the grounds of the judgment (references omitted) how the actual behaviour objected to is to be assessed. But in her principal application the claimant pursues a more extensive concern: she wants a statement which is capable of generalisation on how other types of conduct are to be assessed. This could not, however, be deduced from the judgment, even by reference to the grounds of the decision.
2. The appeal court has only allowed the application for injunctive relief in the form of the alternative application with limiting additional words; the subsidiary applications at a) and b) were too widely formulated. The defendant could not be prevented from advertising with the name and picture of Marlene Dietrich for goods or commercial services in the area protected by Art 5 of the Basic Law of freedom of information, knowledge and art. In particular there could be no objection for instance to a biography, musical or a film about Marlene Dietrich being advertised with the first name of Marlene and a picture of Marlene Dietrich. Therefore the formal content of the prohibition was to be limited to the actual form of the infringement in each case.
These explanations stand up to examination in the appeal in law. The alternative applications are not impermissibly changed by the limitations imposed by the appeal court (§ 308 of the Civil Procedure Code). They are neither deprived of their certainty nor does the limited award of injunctive relief miss the core of the prohibition sought. It should be borne in mind here that in the present appeal in law proceedings, the only question which arises is whether the rejection of the more extensive claim which is inherent in the limiting words mentioned above should have occurred. The consequent judgment against the defendant is on the other hand not open to scrutiny (§ 559 (1) of the Civil Procedure Code).
Contrary to the view of the appeal in law, the formal judgment is not made uncertain by the concretizing additions ("if this occurs as..."). The appeal court has limited the award of injunctive relief at a) and b) to the actual form of infringement in such a way that reference is made to the agreement (described in the definition of the tort in the judgment under challenge) between Lighthouse Musical and FIAT as well as to the advertisement (likewise described in the definition of the tort) for cosmetics by the Ellen Betrix enterprise. The range and scope of the formal judgment are thereby sufficiently determined.
The limited content of the formal judgment also expresses the core of the accusation of infringement correctly and does not curtail the claimant's desire for legal protection in an impermissible way. A prohibition which - as here - refers to the actual act of infringement is not limited to identical cases of infringement, but also includes variations which leave the core of the act of infringement untouched. It also extends to those actions which correspond to the prohibited behaviour in its characteristic features (constant case law; references omitted). Insofar as the appeal in law objects here that on the basis of the limitation the sale of promotion articles, for example, would not be prohibited, it fails to consider the fact that behaviour of this kind, though admittedly not covered by a) and b), is covered by c) of the formal content of the prohibition.
Also, in so far as the appeal court has limited the prohibition applied for in c) by leaving out advertisement for works of art concerning Marlene Dietrich from the prohibition, the judgment is still sufficiently certain. It is clear from the grounds for the decision in the appeal court judgment, which are to be called on to interpret the formal part of it, that such an exception exists if the advertisement itself refers directly to a work of art concerning Marlene Dietrich - whether it is a musical, or whether it is films, books or plays.
II. The application for a declaration and the giving of information:
The objection by the appeal in law to the rejection by the appeal court of the applications for a declaration and the giving of information is successful. The appeal court was admittedly correct here in proceeding on the basis that a claim to enrichment against the defendant does not fall to be considered, because the person obliged to compensate for the enrichment would not have been the defendant personally but Lighthouse Musical. However, the appeal court's assumption that the claimant has no right to compensation for harm from any legal standpoint proves to be legally incorrect. Contrary to this view, the claimant can demand from the defendant compensation for harm under § 823 (1) of the BGB. The general personality right protected by § 823 (1) of the BGB and its special forms of manifestation, like the right to one's own picture and the right to one's name, do not only serve the protection of non-material personality interests, but also ones which are of financial value (see 1.). The corresponding components - protecting the interests which are of financial value - of the Marlene Dietrich's right of personality passed on her death to the claimant (see 2.). The defendant infringed these rights unlawfully and culpably, and therefore has to pay compensation for harm and give information to the claimant (see 3.). Under these circumstances, no decision is needed on whether such a claim could also arise under § 1 of the UWG (see 4.).
1. The general right of personality has been recognised in the case law of the Bundesgerichtshof since 1954 as a basic right constitutionally guaranteed by Arts 1 and 2 of the Basic Law and at the same time as an "other right" protected in civil law under § 823 (1) of the BGB (constant case law since BGHZ 13, 334, 338 - readers' letters). It guarantees as against all the world the protection of human dignity and the right to free development of the personality. Special forms of manifestation of the general right of personality are the right to one's own picture (§§ 22 ff. of the KUG) and the right to one's name (§ 12 of the BGB). They guarantee protection of the personality for the sphere regulated by them (reference omitted).
The general right of personality and its special forms of manifestation primarily serve the protection of non-material interests, in particular the protection of the claim of the personality to worth and respect. This protection is realised by the fact that on an infringement of these rights, besides defensive claims, claims to compensation for harm come into consideration which aim at compensating not only material but also - when it is a question of a serious intrusion and the harm cannot be satisfactorily compensated in another way - non-material harm. This compensation is admittedly not based on a claim to compensation for pain and suffering under § 847 of the BGB, but on a legal remedy which originates directly from the protective mandate in Arts 1 and 2 para 1 of the Basic Law (see BVerfGE 34, 269, 282 and 292 = GRUR 1974, 44, 46, 48 and 50 - Soraya). The granting of monetary compensation in cases of this kind rests on the concept that without such a claim, violations of the dignity and honour of human beings frequently remain without sanction, with the consequence that legal protection of the personality would atrophy (references omitted).
But besides this, the general right of personality and its special forms also protect those interests of the person which are of financial value. A considerable economic value can attach to the image, name and other features of the personality, like for example the voice. This value is generally based on the person's fame and reputation in the public eye - mostly as a result of special achievements in, for example, the areas of sport or the arts. A well known personality can exploit this popularity and the image connected with it economically by allowing third parties to use his picture or his name and also other features of his personality which facilitate recognition in advertising for goods or services in return for money. Frequently therefore fewer non-material than commercial interests of the person affected are harmed by an unauthorised use of the features of his personality for the purpose for instance of advertising, because he will feel himself harmed less in his honour and his reputation than he will see himself as disadvantaged financially (references omitted).
The Bundesgerichtshof has always included the commercial interests in the personality within the protection guaranteed by the personality rights. The personality rights should accordingly protect the right of free decision, belonging only to the person entitled, on the question of whether and under what conditions his picture or his name - and the same applies for other characteristic features of the personality - is used for the business interests of third parties (references omitted). In relation to economic interests in the personality, the Bundesgerichtshof has recognised that the right of personality also shows elements which are of financial value (BGHZ 50, 133, 137 - Mephisto). It has accordingly described the right to one's own picture as a exclusive right of financial value and generally regarded claims for compensation as possible on violation of the right of personality (references omitted).
2. The elements of financial value in the right of Marlene Dietrich to her own picture and name have passed to the claimant as sole heir. This is because, regardless of their transferability between living persons, these elements are - in contrast to the highly personal elements which protect non-material interests - inheritable.
a) Insofar as the rights of personality protect non-material interests, they are indissolubly bound to the person of the holder of them and, as highly personal rights, are not renounceable and are inalienable, and are therefore not transferable and not inheritable (see BGHZ 50, 133, 137 - Mephisto; other references omitted). No-one can relinquish his right to his own picture, his right to his name or another personality right completely and conclusively. This would contradict the guarantee of human dignity (Art 1 of the Basic Law) and of the right to self-determination (Art 2 of the Basic Law; other references omitted).
b) The question of whether the elements of the right of personality which are of financial value and which protect commercial interests in the personality are transferable and inheritable has not yet been expressly decided by the Bundesgerichtshof. But in some decisions it has already been intimated that the principle of non-transferability and non-inheritability does not necessarily apply for all elements of the personality right. Thus it has stated in the Mephisto decision "that the right of personality - apart from its elements which are of financial value - is, as a highly personal right, not transferable and not inheritable" (BGHZ 50, 133, 137). In the "NENA" decision, it left open whether the transfer of the right to one's own picture is ruled out because of its legal character as a general personality right (reference omitted). A considerable part of the academic literature argues for transferability and inheritability of the property law powers which are connected with the rights of personality (references omitted). Others consider these powers to be simply non-transferable because of their personality right character (references omitted).
c) A number of considerations argue for the elements of the right of personality which are of financial value not being indissolubly bound to the person of the holder of the right in the same manner as the part of the right of personality which protects non-material interests. There is also the special need for protection which can only be taken into account by regarding the elements of the personality right which are of financial value as inheritable. Whether this part of the right of personality can be transferred between living persons or whether rights to the use of it can be granted does not, however, need to be decided in the present case.
aa) First the examples of other rights show that the character of a right can change in the estimation of the legal order.
Thus the Reichsgericht has regarded the right to the name of a firm as still being the right to a name and therefore as a right of personality (references omitted). The Bundesgerichtshof has not maintained this case law. It has classified the material right to a firm's name as a property right, and based this on the fact that the name in this area has largely become separated from a particular person and becomes associated with an object - an enterprise or an association of persons. Considerable property law interests would thereby come into play which could outweigh the non-material interests in the name and completely displace them (reference omitted). Even the firm which contains the name of a person can therefore - together with the trading enterprise (see §§ 22 and 23 of the Commercial Code) - in principle be transferred and inherited without limitations.
Trade mark law was likewise categorised by the Reichsgericht as still being a personality right (references omitted). The trade mark has since become completely detached from its relationship to a business and the personality of an entrepreneur. It can be acquired without a business (§ 7 of the Trade Marks Act) and it can be transferred and inherited (§ 27 (1) of the Trade Marks Act). Even a mark which consists of a person's name or picture is today a non-material property right capable of being freely dealt with.
bb) The picture, name and other characterising features of the personality have always been capable - as a reflection of the defensive rights granted by the legal order against an unauthorised use - of being exploited commercially and in particular of being used for advertising purposes (reference omitted). Protection of interests of financial value was also always connected with this, but it did not necessarily have to be regarded as an independent element of the right of personality. However in past decades technical, economic and business conditions have changed (reference omitted). Features of the personality can with improved technical opportunities be recorded in sound and vision, and copied and disseminated. They have become economically exploitable to an extent not previously known, because of the continuing development of the mass media. So-called image transfer has a large role to play in advertising. It involves diverting the positive associations, which consumers connect with a well known personality, to the product to be advertised. In this respect well-known personalities contribute to creation of value to a considerable extent. The possibility of marketing the personality of, for instance, well-known figures in sport or the arts has - without passing judgement on this occurrence - become an important factor in product development which can no longer be imagined as not existing.
cc) Recognition of the inheritability of the elements of the right of personality which are of financial value is required to guarantee protection from commercial exploitation of a name, a picture and other features of the personality of a deceased person by those who are not entitled to do so. An effective posthumous protection of the elements of the right of personality which are of financial value is only guaranteed if the heir can step into the role of the holder of the right of personality and can, in defending the presumed interests of the deceased, proceed in the same way as that person could have done against an unauthorised exploitation.
It is true that, according to constant case law, the continuing image of the personality is also protected after death against serious distortions (BGHZ 50, 133, 136 ff. - Mephisto; other references omitted). Likewise at any rate the right to one's own picture (§ 22 sentence 3 of the KUG) and possibly also the right to a name (reference omitted) continue to have an effect beyond death. But, on a posthumous violation of these rights, only defensive claims are granted to the person entitled to exercise them, and not claims to compensation for harm, because a deceased person could not suffer harm which is compensatable by a money payment (references omitted). In these cases it is only a question of the infringement of non-material interests, for the protection of which the highly personal claim to respect continues to have an effect. This admittedly is not transferable and not inheritable, but it can be exercised after death for defensive purposes by a person authorised to do so (BGHZ 50, 133, 137 f. - Mephisto). The defensive claims granted are of little use, however, if the violation of the right - as is frequently the case - has already ended, before the person entitled to the claim obtains knowledge of it. Besides this, it seems unfair to surrender the financial value created by the achievements of the deceased and embodied in his picture, his name or his other personality features after his death to the clutches of just any third party, instead of giving this financial value to his heirs or relations or other persons who were close to him when he was alive (references omitted).
Doubts are certainly raised in part in the academic literature about promoting the increasing commercialisation of the personality. It is said that this is a possible unsatisfactory development in society, against which the legal order must take a stand, because the creation of a marketable non-material property right is in the end result directed against the individual and makes his personality available for third parties (references omitted). These doubts should certainly not be simply dismissed, but in the end they do not prevail. For one thing, the protection of the personality is strengthened rather than weakened by the recognition of an independent inheritable element of the right of personality which has financial value, and on the violation of which the person entitled can acquire his own defensive rights and rights to compensation for harm. This applies not least in cases in which the name, picture or other personality features of a deceased person are used by a third party for commercial purposes contrary to the wishes of the heir and / or relatives and contrary to the presumed wishes of the deceased holder of the right of personality. This is because the right of personality in this situation will not be effectively protected with the help of defensive claims alone, as sanctions are only available in the case of repetition. A claim to enrichment can also fail in these cases, if - as here - the violator himself has not been enriched. Besides this, a claim for enrichment (reference omitted) also assumes a corresponding legal assignment of assets (reference omitted).
For another thing, it has to be borne in mind that the legal order in relation to marketing of legally protected positions does not form a rigid system to which reality would have to orientate itself. Instead, besides the indisputable task of setting predetermined boundaries by value judgements, the law also has an assisting function in that it must also offer a regulatory framework for new forms of marketing which are in the interest of the marketer as well as of the person who might permit such marketing of his personality. It is true that the legal order must confront the demands which arise from the growing commercialisation of the right of personality where legal or ethical principles of higher rank demand this (references omitted). But an ineffective protection of the right of personality, limited to defensive powers, does not constitute a remedy against undesired exploitation of the personality. The interest which exists in not harming the image of a deceased person by unrestricted commercial exploitation of features of his personality can best be served by the heir being able to resist unauthorised exploitation, as holder of the elements of the right of personality which are of financial value. In this connection he has in principle at his disposal the same claims as the living holder of the right of personality - despite the differences which can arise after the death in respect of the scope of the content of the right (see BGHZ 50, 133, 140 f. - Mephisto).
Finally, it should be pointed out that the powers of the heir derive from the holder of the right of personality and cannot be used in a manner contrary to his presumed wishes. The power of the heir to exploit the elements of the right of personality which are of financial value by taking action against an unauthorised use of the picture or name of a deceased person is therefore not linked to an unlimited positive right of use which could be exploited even against the express or presumed interests of the deceased holder of the personality right. The heir is only allowed to use the opportunities for marketing which exist or continue after the death on taking the deceased's will into account. In the present case, which concerns compensation for an unauthorised use, it is beyond doubt that the measures taken by the claimant are in the interest of her deceased mother.
d) Whilst the defensive claims which protect the deceased's non-material interests are to be made by the relatives (§ 22 sentences 3 and 4 of the KUG) or by a person entitled to exploit them appointed for this purpose (see BGHZ 50, 133, 139 f. - Mephisto), only the heirs are to be considered as holders of the powers which are of financial value (reference omitted) and they are not necessarily identical with the persons just mentioned. It is not however an argument against the inheritability of the elements of the right of personality which are of financial value that different persons can become entitled to the non-material and the financial interests.
If the elements of the right of personality which are of financial value are inherited, they still remain, for the preservation of the non-material interests of the holder of the right, inseparably linked with the inalienable highly personal elements of the right of personality. This is because commercial exploitation frequently also affects the powers which belong to the relatives (§ 22 sentence 2 of the KUG) and other persons entitled to exploit them. In this respect the position is no different from that applying in copyright law. Here the powers in copyright personality law which are likewise aimed at protecting non-material interests (§§ 11 ff. of the Copyright Act) are frequently not in the same hands as the rights of use (references omitted). This means that uses which also interfere with powers in copyright personality law need not only the consent of the person entitled to the use but also of the owner of the copyright personality right. The situation is no different if, for example, the picture of the deceased is to be used for commercial purposes. Here the consent of the heirs as well as of the owner of the elements of the right of personality which are of financial value and also of the relatives is necessary (§ 22 sentence 3 of the KUG). Likewise the non-material interests of the deceased protected by the general right of personality can be affected by a commercial use of features of the personality, with the result that the person with the right of exploitation could take action against such a use in spite of agreement by the heirs. In the present case, such rights are however in one person's hands, because the claimant is the sole heir, as well as the only relative of Marlene Dietrich (see § 22 sentence 4 of the KUG).
e) Nor can the objection of lack of legal certainty be successfully raised against the inheritability of the elements of the right of personality which are of financial value. The possibility of commercial exploitation of the features of the personality has developed - as explained above (under II.2. c) aa)) - from the protection under the personality right of non-material interests. Therefore it seems reasonable to assume that the protection of commercial interests cannot extend in time beyond the protection of non-material interests in the personality. The ten year period of § 22 sentence 2 of the KUG offers a clue in this respect. But it can remain open whether longer protection of the commercial interests should be considered if and insofar as longer protection of non-material interests arises exceptionally from the general right of personality (see BGHZ 50, 133, 140 f. - Mephisto). This because in the present case it is a question of the use of the name and picture of Marlene Dietrich in the period shortly after her death.
3. The defendant has unlawfully and culpably violated the elements of financial value of the right of Marlene Dietrich to her own picture and name which have passed to the claimant and he is therefore obliged to provide compensation for harm as well as to supply information.
Contrary to the view of the reply to the appeal in law, the application which has been made for a declaration that there is a duty to provide compensation does not require a special intensity of interference on violation of the right. It is true that, for violations of non-material interests, claims for monetary compensation only come into consideration in the lifetime of the holder of the right of personality (see above under II.1.) and only in relation to serious encroachments. But this does not apply on a violation of material interests of the kind under discussion here. A person who culpably violates the elements of the right of personality which are of financial value is liable for the harm which occurs, just as for a violation of other exclusive rights which are of financial value, regardless of how serious the interference was.
a) The right of Marlene Dietrich to her own picture (§ 22 of the KUG) has - as the appeal court has correctly accepted - been violated by her picture having been used without the necessary consent for the special model Lancia Y 10 "Marlene", for the cosmetics advertisement by the Ellen Betrix enterprise and for promotion articles.
aa) The photographs and drawings used are pictures in the sense of § 22 sentence 1 of the KUG. A picture in the sense of this provision is a portrayal of a person which reproduces their outward appearance in a manner recognisable to a third party (references omitted). It does not matter in this connection how the picture has been produced, so the protection of pictures does not only include photographs but also other forms of portrayal as for example drawings (reference omitted).
bb) These pictures have been disseminated without the consent of the claimant as the owner of the elements of the right of personality which are of financial value and - which admittedly does not matter as the basis of an obligation to provide compensation for harm - as the person entitled under § 22 sentence 3 of the KUG.
cc) The consent of the claimant was also not dispensable. It is true that pictures from the realm of contemporary history may be disseminated under § 23 (1) no. 1 of the KUG without the consent necessary under § 22 of the KUG. Marlene Dietrich was - and the reply to the appeal in law also does not question this - a so-called absolute person of contemporary history (references omitted). But a person who by publication is not fulfilling any interest of the general public in information which is worthy of protection, but is only using the picture of another for advertisement purposes to satisfy his business interest cannot refer to the exception provision of § 23 (1) no. 1 of the KUG (references omitted). That is the position here. The use of the picture was not to give information about the life or work of Marlene Dietrich, but exclusively to advertise cars, cosmetics and promotion articles.
The defendant can also not successfully claim that these were advertising measures for the musical which are covered by artistic freedom. Admittedly advertising for a work of art falls within the protection of Art 5 para 3 sentence 1 of the Basic Law. This is because artistic freedom does not only protect the actual artistic activity, the "work area" ("Werkbereich") of the artistic work, but also the "effect area" ("Wirkbereich") in which access to the work of art is provided to the public. Advertisement for the work of art is also included in this (references omitted). But the picture and name of Marlene Dietrich were not used to advertise for the musical, but exclusively to promote the sales of the products provided with it. According to the findings of the appeal court, which are free of legal error, there is no connection which is recognisable for third parties between these products and the musical. No reference is made to the musical on these products; even the words "Tell me where the flowers are" on the telephone cards, the wrist watches and the mugs were not only the former title of the musical, but also the title of a song which contributed in a special way to Marlene Dietrich's fame. No different assessment is required just because for instance the FIAT and Ellen Betrix enterprises have each provided consideration for the use of the picture and name of Marlene Dietrich, which was to benefit the musical. This does not change the fact that the picture of Marlene Dietrich was not directly used as a means to draw the public's attention to the musical.
b) The right to determine whether one's own name may be used for advertising purposes, to which the claimant is entitled as heir of Marlene Dietrich, has further been infringed by the mention of the name "Marlene" in the advertising (references omitted). This power likewise constitutes an inheritable element of the right of personality which is of financial value insofar as it protects commercial interests of the bearer of the name. It is not a question here of violation of the powers under the law on names (§ 12 of the BGB), which can possibly come into consideration even with a use which is not related to the name if the impression would arise in the ordinary affairs of life that the bearer of the name has granted to the user a right to appropriate use of the name (references omitted).
The appeal court has correctly assumed that the use to which objection has been made of the signature "Marlene" is to be seen as an unauthorised utilisation of the name of Marlene Dietrich. It is true that first names on their own are mostly not understood as a reference to a certain person. This may be different in the case of Marlene Dietrich in view of her outstanding fame and the comparatively strong identification power of her first name (reference omitted). But this can be left open here because in the actual form of the violation which the appeal court has alone made the subject of the judgment, the first name has not been used on its own, but has on each occasion been used with a picture of Marlene Dietrich.
c) The defendant must assume liability for the violation of the elements of the right of personality of Marlene Dietrich which are of financial value. He has as the sole manager of Lighthouse Musical allowed FIAT Automobil AG the use of the picture and of the first name of Marlene Dietrich and has thereby participated in the consequent violation of the law, at least as an assistant. He was further responsible for the publication and the content of the programme booklet in which cosmetics were advertised with the picture and first name of Marlene Dietrich. And finally the production company represented by him had the promotion articles manufactured with the picture of Marlene Dietrich and offered for sale. Under these circumstances it is not necessary to fall back on the possibility of liability for disturbance, because the conduct objected to is to be directly attributed to the defendant as manager.
Finally the defendant has acted not only unlawfully but also culpably. He could not assume, applying the care necessary in the affairs of life, that the picture and name of Marlene Dietrich, who had only recently died, could be used for advertising purposes without the consent of the sole heir and only relative (reference omitted).
d) The defendant must therefore compensate the claimant for the harm to her which has already arisen and will yet arise in the future through violations of the right of personality. The claimant can calculate the harm which has arisen for her either actually or by analogy with a licence, or demand the violator's profits (reference omitted). In order to be able to choose the form of calculation of harm which is most favourable for her and in order to calculate the harm, the claimant has a claim to the supply of the information for which she has applied.
4. Under the given circumstances it does not need to be clarified whether the claimant is also entitled to claims under § 1 of the UWG. Competition law would anyway offer no possibility of resolving the present case without recourse to the right of personality. Even if a competition relationship existed between the parties, classification of the marketing opportunities is not to be founded on competition law but only on the right of personality.
III. The decision on costs is based on §§ 91, 97 (1) and 92 (1) of the Civil Procedure Code.
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