BGH - I ZR 2/21
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| BGH - I ZR 2/21 | |
|---|---|
 | |
| Court: | BGH (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(f) GDPR Article 85(1) GDPR Article 85(2) GDPR Article 4(1) GDPR § 22 KUG § 23 KUG |
| Decided: | 24.02.2022 |
| Published: | |
| Parties: | Tina Tuner Cofo Entertainment |
| National Case Number/Name: | I ZR 2/21 |
| European Case Law Identifier: | |
| Appeal from: | LG Köln (Germany) I-15 U 37/20 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | BGH (in German) |
| Initial Contributor: | Sara Horvat |
The German Supreme Court (BGH) held that in a case concerning a Tina Turner lookalike for a tribute show, artistic freedom outweighed Tina Turner's personality rights in application of §§ 22, 23 Art Copyright Act (KUG) which requires the same balancing exercise as Article 6(1)(f) GDPR.
English Summary
Facts
Tina Turner sued the organiser of a tribute show called "Simply The Best - Die Tina Tuner Story" for injunctive relief. In her opinion, the photo and the name of the show gave the impression that she would be standing on stage in person or supporting the show.
The question was whether the double looked too much like the original and whether advertising posters with her photo and the title "Simply The Best - The Tina Turner Story" gave the impression that the superstar herself was involved.
In the first instance, the Regional Court of Cologne (LG Köln) held that the personality rights of Ms. Turner outweighed the artistic rights of the organiser. The Higher Regional Court of Cologne (OLG Köln) held that the artistic freedom (Kunstfreiheit) outweighed the personality rights of Ms. Turner.
Holding
The German Supreme Court held that a claim for injunctive relief with regard to the use of Ms. Turner's likeness is not applicable on the grounds of § 1004(1)(2) and § 823(2) BGB (Civil Code), §§ 22, 23 KUG (Art Copyright Act).
While the Court agreed with the previous instances that the pictures of the plaintiff constituted personal data pursuant to Article 4(1) GDPR, it based its decision on §§ 22, 23 KUG. Under the KUG, it is permissible to take and publish photos of people without their consent if it is in the "higher interest of Art", i.e. if the artistic value of such creation outweighs the personal rights of the person pictured.
However, the Court did not decide on the relationship between the KUG and the GDPR. It rather left open the question whether the use of the plaintiff's image for the defendant's posters was for "artistic purposes" within the meaning of Article 85(1) and (2) GDPR and whether the conditions set out therein for the adoption or continued application of national provisions (i.e. the KUG) were fulfilled with regard to the constellation of the case in dispute. The Court merely held that Ms. Turner could base a claim for injunctive relief neither on the KUG nor on the GDPR because the comprehensive weighing required by both Article 6(1)(f) GDPR and §§ 22, 23 KUG led to the same result.
It was true that the defendant had used a likeness of the plaintiff on each of the posters in the sense of § 22 (1) KUG. The depiction of a double was also to be regarded as a portrait of a famous person if - as in the case at issue - the impression was given to a not inconsiderable part of the public that the double was the famous person himself. However, this was not clear from the posters as they did not make any statement on this and were not ambiguous in this respect.
The use of the portrait was permissible pursuant to § 23(1)(4) of KUG since it had not been made at the request of Ms. Turner, its dissemination or display served a higher artistic interest and the act of dissemination did not infringe any legitimate interest of her within the meaning of § 23(2) KUG. The same resulted from § 23(1)(1) KUG.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
subject
Tina Turner
motto
Tina Turner
1. If a person is represented by another person, the representation is (only) to be regarded as a portrait of the person represented if the deceptively real impression is created that it is the person represented himself, as is the case with the use of a double or "look-alike" or a recreated famous scene or photograph (continuation of BGH, judgment of December 1, 1999 - I ZR 226/97, GRUR 2000, 715, 716 f. [juris para. 21] = WRP 2000, 754 - The Blue Angel and judgment of May 18, 2021 - VI ZR 441/19, GRUR 2021, 1222 paras. 22 to 27 with further references). It is sufficient if a not inconsiderable part of the audience believes that it is the person portrayed.
2. In such a case, the person actually depicted, but not the person allegedly depicted, can refer to the fact that the portrait was made to order within the meaning of Section 23 (1) No. 4 KUG. Only between the person actually portrayed and the artist can a relationship of trust arise due to the circumstances of the creation of the image, which prevents the distribution or display of the portrait for a higher interest in art.
3. The advertisement for a show in which songs by a celebrity singer are sung by a performer who looks remarkably like her, with a portrait of the performer that gives the deceptively real impression of being the celebrity singer herself, is generally of the artistic freedom covered. However, advertising for such a tribute show constitutes an unjustified encroachment on the asset component of the prominent original's general personality rights if the incorrect impression is given that the prominent original supports it or is even involved in it.
tenor
The appeal against the judgment of the 15th civil senate of the Cologne Higher Regional Court of December 17, 2020 is rejected at the expense of the plaintiff.
By rights
facts
1
The plaintiff, who goes by the stage name Tina Turner, is a world-famous singer. The defendant is the producer of the show "SIMPLY THE BEST - THE tina turner STORY", in which the singer DF appears and presents the plaintiff's greatest hits. The defendant advertised the show with posters depicting D.F. and using the plaintiff's (artist) name in the caption "THE tina turner STORY".
2
The plaintiff, who has not consented to the use of her likeness or name, believes that because of the resemblance between D.F. and herself, the viewer assumes that she herself appears on the posters and is involved in the show. After an unsuccessful warning, she applied for
1. to order the defendant to refrain from
a) to use and/or have used the name of the plaintiff "Tina Turner" for advertising material for the promotion of the show "SIMPLY THE BEST - the Tina Turner Story" if this happens as shown below
Illustration
b) to use and/or have used the image of the plaintiff for advertising material for the promotion of the show "SIMPLY THE BEST - the Tina Turner Story" if this happens as shown below
[the above posters are displayed]
2. alternatively, ordering the defendant to refrain from doing so, under threat of further specified administrative measures,
a) to use and/or have used the name of the plaintiff "Tina Turner" for advertising material for the application of the show "SIMPLY THE BEST - the Tina Turner Story", if this happens as shown below, without at the same time an addition that excludes any possibility of confusion to add
[the above posters are displayed]
b) to use and/or allow the use of the image of the plaintiff "Tina Turner" for advertising material for the show "SIMPLY THE BEST - the Tina Turner Story", if this happens as shown below, without at the same time an addition that excludes any possibility of confusion to add
[the posters reproduced above are displayed].
3
The regional court (LG Cologne, ZUM-RD 2020, 293) granted the action according to the main claims. The Court of Appeal (OLG Köln, ZUM-RD 2021, 293) amended the judgment of the Regional Court and dismissed the lawsuit. With the appeal allowed by the court of appeal, the rejection of which the defendant requests, the plaintiff strives for the restoration of the district court's judgment and pursues her auxiliary requests subordinately.
Reasons for decision
4
A. The Court of Appeal denied the plaintiff's claim for injunctive relief against the use of her likeness and her name after the main and the auxiliary request and stated as a reason:
5
A claim for injunctive relief with regard to the use of the portrait does not follow from § 1004 Paragraph 1 Clause 2, § 823 Paragraph 2 BGB, §§ 22, 23 KUG. It is true that the defendant used a picture of the plaintiff within the meaning of § 22 sentence 1 KUG on each of the posters. The depiction of a double is also to be regarded as a portrait of a famous person if - as in the case at hand - the impression is given to a not inconsiderable part of the audience that the double is the famous person himself. However, the use of the portrait is appropriate § 23 para. 1 no. 4 KUG, since it was not made to order by the plaintiff, its distribution or display serves a higher interest of art and the act of dissemination does not represent a legitimate interest of the plaintiff within the meaning of § 23 para. 2 KUG get hurt. The same results from Section 23 Paragraph 1 No. 1 KUG. In any case, the plaintiff cannot base a claim for injunctive relief on data protection law either, because the comprehensive weighing of interests that is also required in this respect comes to the same result as the weighing according to §§ 22, 23 KUG.
6
The plaintiff is also not entitled to an injunctive relief according to § 12 sentence 1 case 2 BGB because of the use of her name on the posters. There are already fundamental doubts as to whether the provision is applicable at all and whether the plaintiff's name is "used". In any case, the defendant's interests took precedence over those of the plaintiff.
7
A claim for injunctive relief does not result from § 1004 Section 1 Clause 2, § 823 Section 1 BGB, Article 1 Section 1, Article 2 Section 1 GG because of a violation of the plaintiff's general right of personality. It is true that the defendant encroached on the financial components of the plaintiff's personality rights by using her name and likeness for advertising purposes. However, this use is not illegal. In the context of the weighing process, the interests of the defendant, who could invoke their artistic freedom under Art. 5 (3) GG with regard to the design of the posters, deserved priority over the interests of the plaintiff in a decision on the use of the likeness and name.
8th
The lawsuit was unsuccessful even with the auxiliary requests. Since the defendant was not prevented from using the posters in the contested form as advertising material for the show, it could not be legally obliged to provide them with an explanatory addendum.
9
B. The admissible (see B I) revision of the plaintiff is unsuccessful. The Court of Appeal rightly dismissed the main claims against the use of the plaintiff's portrait (see B II) and name (see B III). With regard to the auxiliary requests, the dismissal of the action also stands (see B IV).
10
I. The revision is permitted without restrictions. The ruling sentence of the appeal judgment contains no limitation on the appeal admission. The case law of the Federal Court of Justice recognizes that a restriction on the admission of an appeal can also result from the reasons for the decision. However, according to the principle of clarity of appeal, the parties must be able to recognize without a doubt which legal remedy is possible for them and under what conditions it is permissible. Merely stating the reason for the admission of the appeal is not enough to assume that the appeal is only admitted to a limited extent (st. Rspr.; cf. only BGH, judgment of July 22, 2021 - I ZR 194/20, GRUR 2021, 1534 20 = WRP 2021, 1556 - broadcasting liability). In the grounds for its decision, the court of appeal explained that the case was of fundamental importance with regard to the requirements for the application of Section 23 (1) No. 4 KUG to portraits of celebrities or their doubles, which have not only been also subject to artistic freedom. In doing so, it merely stated the reason for the approval for revision, without restricting the legal remedy. Contrary to the opinion of the reply to the appeal, the statements of the court of appeal do not indicate that the approval for appeal was limited to the applications for injunctive relief directed against the use of the plaintiff’s portrait (1 b and 2 b), because the court of appeal rejected the applications for injunctive relief directed against the use of the plaintiff’s name (1 a and 2 a) based on the same considerations.
11
II. The Court of Appeal rightly has a claim for injunctive relief for the plaintiff from § 1004 paragraph 1 sentence 2, § 823 paragraph 1 and 2 BGB, §§ 22, 23 KUG because of the use of her picture on the posters of the defendant according to the main application (application 1 b) no.
12
1. The Court of Appeal correctly assumed that the defendant interfered with the pecuniary attribution of the right to the plaintiff's own image.
13
a) The decision as to whether and in what way one's own image should be made available for advertising purposes is an essential - pecuniary - part of the right of personality. The unauthorized use of an image for advertising purposes therefore constitutes an encroachment on the pecuniary attribution of the right to one's own image and, like any unauthorized encroachment on the right to one's own image, justifies a claim for injunctive relief. The question of whether an image has been used for advertising, i.e. commercially, is assessed from the point of view of the average viewer. An encroachment on the pecuniary attribution of the right to one's own picture can be considered in particular if the use of the portrait exploits the advertising and image value of the person depicted, for example by marketing the person depicted as the opening credits for a press product. However, it is also sufficient, but leads to a lower weight of the interference, if there is mere attentional advertising, i.e. the viewer's attention is only to be drawn to the advertised product (cf. BGH, judgment of January 21, 2021 - I ZR 207/19 , GRUR 2021, 643 paras. 12 to 14 = WRP 2021, 484 - holiday lottery, with further reference).
14
b) The Court of Appeal rightly assumed that the posters in question show a portrait of the plaintiff.
15
aa) If a person is represented by another person - for example an actor - the protection of the image is based on the following principles:
16
In the case of an identifiable portrayal of a person by an actor, the protection of the image belongs to the actor, who in this case also remains "personal" in his role and thus remains recognizable as himself. The depiction is (only) to be regarded as a portrait of the depicted person if the deceptively real impression is created that it is the depicted person himself, as is the case, for example, with the use of a double or "look-alike" or a re-enactment of a famous scene or photography may be the case (cf. BGH, judgment of October 28, 1960 - I ZR 87/59, GRUR 1961, 138, 139 - Schölermann family; judgment of December 1, 1999 - I ZR 226/97, GRUR 2000, 715, 716 f. [juris para. 21] = WRP 2000, 754 - The Blue Angel; Judgment of May 18, 2021 - VI ZR 441/19, GRUR 2021, 1222 para. 22 to 27 with further reference). It is not important on which features of the external appearance this impression is based; it does not have to result from the facial features, but can also result from other details characterizing the person concerned (cf. BGH, GRUR 2000, 715, 716 f. [juris para. 21] - The Blue Angel). Adding the name of the person portrayed can also contribute to this (cf. BGH, judgment of June 9, 1965 - Ib ZR 126/63, GRUR 1966, 102 [juris para. 9] - playmate).
17
In such cases, it is sufficient for the assumption of a portrait of the person portrayed if a not inconsiderable part of the audience addressed believes that it is the person portrayed (cf. OLG Karlsruhe, AfP 1996, 282 [juris para. 29]; LG Düsseldorf, AfP 2002, 64, 65; Wenzel/von Strobl-Albeg, The right of word and picture reporting, 6th edition, chapter 7 marginal number 24; on the question of recognizability in other cases see BGH, judgment of 29 September 2020 - VI ZR 445/19, ZUM-RD 2020, 637 para. 18).
18
bb) The Court of Appeal proceeded from these principles and stated that the main actress of the show depicted on the posters is strongly reminiscent of the plaintiff at the time when she herself performed on stage, due to her hairstyle and the pose she adopted. It does not matter that the plaintiff was significantly older than the double pictured at the time the posters were published. It could also be an older photo of the plaintiff from the time when she herself was still performing on stage. In addition, the plaintiff's name is mentioned in the title of the poster. From the point of view of the average recipient, it is therefore a representation of the plaintiff.
19
cc) The objections in the reply to the appeal against this assessment do not get through.
20
(1) Contrary to the opinion of the reply to the appeal, the use of a doppelganger is just one, but not the only, way by which the deceptively real impression can be created that it is the person portrayed. What is required is an assessment based on the overall circumstances, which the Court of Appeal made without any legal errors. In addition, the Court of Appeal assumed that the leading actress of the show depicted on the posters resembled the plaintiff in the sense of a double.
21
(2) Also unsuccessfully, the reply to the appeal repeats the defendant's submission in the factual instances that the attacked posters - simply because of the reference "THE tina turner STORY" - clearly show for the addressed public that it is not the plaintiff that is shown, but the significantly younger actress of a show that the plaintiff is the subject of; evoking an association with her is not sufficient to justify the protection of the image. The conclusion drawn from the reply to the appeal is by no means compelling; Nor does it claim that the Court of Appeal overlooked relevant circumstances in its assessment.
22
(3) The additional argument put forward by the reply to the appeal that it must be allowed to advertise a permitted tribute show with a picture from the show is irrelevant for the classification of the picture as a portrait of the plaintiff. The plaintiff is thus not impermissibly granted a right to her own life image in the sense of a right not to become a role model for a work figure (cf. on this BVerfGE 119, 1, 27 f. [juris para. 82 to 85]; BGH, GRUR 2021, 1222 para. 27). The question of whether the defendant's show encroaches on the plaintiff's rights is not the subject of the lawsuit. There is also no inadmissible duplication of image protection (cf. BGH, GRUR 2021, 1222 para. 22). The Court of Appeal did not find that it was (also) a portrait of D.F.
23
c) Also correct and unchallenged by the appeal, the Court of Appeal assumed that the plaintiff is affected in the property law attribution of her right to her own picture. This follows from the fact that the defendant used the image of the prominent plaintiff for advertising purposes without her consent.
24
2. Ultimately, there are no concerns that the Court of Appeal assessed the legality of the defendant's actions according to the graduated protection concept of §§ 22, 23 KUG.
25
a) The right to one’s own picture according to §§ 22, 23 KUG, as a special statutory expression of the general right of personality, aims to protect the personality from becoming available to others against their will in the form of the image (cf. BGH, GRUR 2021, 1222 para. 21 with further references). According to this, portraits of a person may only be distributed or publicly displayed with the consent of the person depicted (§ 22 sentence 1 KUG). In the absence of such consent, the distribution and display of a portrait is only permissible if it can be positively assigned to one of the exceptional circumstances of Section 23 (1) KUG and legitimate interests of the person depicted within the meaning of Section 23 (2) KUG are not violated. The exceptions include portraits from the field of contemporary history (§ 23 Para. 1 No. 1 KUG) and portraits that are not made to order, provided that the distribution or display serves a higher interest of the art (§ 23 Para. 1 No. 4 KUG).
26
b) The graduated protection concept of §§ 22, 23 KUG is consistent both with constitutional requirements and with the case law of the European Court of Human Rights (cf. BGH, GRUR 2021, 643 para. 31 - Urlaublotto, with further references).
27
c) The question of whether §§ 22, 23 KUG under the application of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation , GDPR) are still applicable to the use of a person's likeness for artistic purposes can remain open in the present case, because in the case at hand there is nothing to indicate that a weighing up against the standard of Art. 6 Para. 1 Subparagraph 1 Letter f GDPR leads to another result could lead.
28
aa) According to Art. 2 Para. 1, the General Data Protection Regulation applies to the fully or partially automated processing of personal data and to the non-automated processing of personal data that is stored or is to be stored in a file system. According to Art. 4 No. 1 GDPR, personal data is all information relating to an identified or identifiable natural person. According to Art. 4 No. 2 GDPR, processing includes any process carried out with or without the help of automated processes or any such series of processes in connection with personal data such as collecting, recording, organizing, arranging, storing, adapting or changing, reading, retrieval, use, disclosure by transmission, dissemination or any other form of provision, comparison or linking, restriction, erasure or destruction.
29
The consent of the data subject to the processing of their personal data for one or more specific purposes leads to the lawfulness of the processing in accordance with Art. 6 Para. 1 Subparagraph 1 Letter a GDPR. In addition, the processing of the data according to Art. 6 Para. 1 Subparagraph 1 Letter f GDPR is lawful if it is necessary to protect the legitimate interests of the person responsible or a third party, unless the interests or fundamental rights and freedoms of the data subject who require the protection of personal data prevail. Art. 85 para. 1 GDPR stipulates that the Member States shall harmonize the right to the protection of personal data in accordance with this regulation with the right to freedom of expression and information, including processing for journalistic purposes and for scientific, artistic or literary purposes, by law bring. If it is necessary for this, according to Art. 85 Para. 2 GDPR, they provide for exceptions to Chapter II, which also includes Art. 6 GDPR. According to Art. 85 Para. 3 GDPR, each Member State shall immediately notify the Commission of the legal provisions enacted on the basis of Art. 85 Para. 2 GDPR, including any subsequent amendments.
30
bb) The Court of Appeal affirmed the existence of personal data within the meaning of Art. 4 No. 1 GDPR. The revision does not attack this assessment. According to the case law of the Court of Justice of the European Union on the similarly worded predecessor provision in Art. 3 Para. 1 of Directive 95/46/EC on the protection of natural persons with regard to the processing of personal data and on the free movement of data, the image recorded by a camera falls under a person this term (cf. ECJ, judgment of February 14, 2019 - C-345/17, GRUR 2019, 760 para. 31 - Buivids, with further references). However, the case law of the Court of Justice of the European Union has not yet clarified the question of whether a person can also be regarded as identifiable if in reality another person is depicted, but by a not inconsiderable part of the public that person is held.
31
cc) The court of appeal did not make any determinations as to whether the defendant fulfilled one of the facts specified in Art. 4 No. 2 GDPR when using the disputed image. According to the case law of the Court of Justice of the European Union on the similarly worded predecessor provision in Art. 3 Para. 1 of Directive 95/46/EC, the (video) recording of a person on the memory of a camera constitutes automated processing of personal data (cf. ECJ, GRUR 2019, 760 para. 35 - Buivids, with further references). In addition, disclosure through the distribution of the image in the course of postering also leads to the scope of the General Data Protection Regulation (for the concept of disclosure through distribution see Herbst in Kühling/Buchner, DS-GVO BDSG, 3rd ed., Art. 4 DSGVO 31 f.; BeckOK.Datenschutzrecht/Schild, 38th edition [as of November 1, 2021], Art. 4 GDPR marginal 49 f. with further references).
32
dd) The Court of Appeal further stated that the plaintiff's claim for injunctive relief does not exist even if one assumes that the regulations in §§ 22, 23 KUG, but rather the data protection standard of Art. 6 Para. 1 Subparagraph 1 Letter f GDPR should be applied because the legislator outside the area of journalistic activity has not yet made use of the opening clause of Art. 85 Para. 2 GDPR have. In the absence of the plaintiff's consent, Article 6(1)(1)(f) GDPR also requires a comprehensive assessment of all conflicting fundamental rights positions of the plaintiff and the defendant. The result remains the same as under §§ 22, 23 KUG, especially since in the specific case no different scope of the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account under Art. 51 (1) EU Charter of Fundamental Rights when applying the General Data Protection Regulation in relation to the national fundamental rights of the Basic Law, including the specifications from the European Convention on Human Rights to be taken into account in the interpretation. This assessment is free of legal errors.
33
(1) When applying regulations that have been completely standardized under Union law, the fundamental rights of the Charter of Fundamental Rights of the European Union are relevant due to the fundamental application priority of Union law, insofar as the fundamental rights protection guaranteed by them - as can also be assumed according to settled case law of the Federal Constitutional Court - is sufficiently effective (cf BVerfGE 152, 216 paragraphs 42 to 49 - right to be forgotten II). Complete standardization can be assumed for the matters covered by the General Data Protection Regulation (cf. BVerfGE 152, 216 para. 41 - right to be forgotten II; BGH, GRUR 2021, 643 para. 40 - Urlaublotto). In the event of a dispute - assuming the applicability of the General Data Protection Regulation - the plaintiff would have the fundamental rights to respect for private and family life from Article 7 of the EU Charter of Fundamental Rights and to the protection of personal data from Article 8 of the EU Charter of Fundamental Rights and on the part of the defendant to weigh up the fundamental rights to freedom of art from Art. 13 EU Charter of Fundamental Rights and additionally to entrepreneurial freedom from Art. 16 EU Charter of Fundamental Rights.
34
(2) Correctly and not challenged by the appeal, the Court of Appeal assumed that a weighing of interests to be carried out on the basis of Article 6(1)(1)(f) GDPR must lead to the same result as one based on Sections 22 and 23 KUG . The Court of Justice of the European Union has already stated, when examining the legality of data processing according to Directive 95/46/EC, that this requires a weighing of the respective conflicting rights and interests, in which the meaning of the rights of the data subject from Art. 7 and 8 EU Charter of Fundamental Rights must be taken into account (cf. ECJ, judgment of May 13, 2014 - C-131/12, GRUR 2014, 895 para. 74 = WRP 2014, 805 - Google Spain and Google). There is nothing to suggest that these principles should no longer apply when applying the General Data Protection Regulation. Neither in the Charter of Fundamental Rights of the European Union itself nor in the case law of the Court of Justice of the European Union are there any indications of a fundamental priority or subordination of one of the fundamental rights affected on one side over the fundamental rights to be abolished on the other side (on Art. 7 , 8 and 11 EU Charter of Fundamental Rights cf. BVerfGE 152, 216 para. 141 - right to be forgotten II; on Art. 7, 8, 11 and 16 EU Charter of Fundamental Rights cf. BGH, GRUR 2021, 643 para. 41 - holiday lottery).
35
ee) According to this, no decision is required as to whether the use of the plaintiff's portrait for the defendant's posters was for "artistic purposes" within the meaning of Art. 85 (1) and (2) GDPR and the requirements set out therein for the enactment or continued validity national regulations are met with regard to the constellation of the dispute (for § 23 Para. 1 No. 4 KUG negative Wenzel/von Strobl-Albeg loc. 7 para. 130; in the result affirmative BeckOK. Copyright/Engels, 33rd Edition [ as of January 15, 2022], Section 22 KUG, paragraphs 10a to 10e; on Section 23 (1) no. ZUM-RD 2020, 642 para. 10 mwN; Federal Court of Justice, ZUM-RD 2020, 637 para 1 GDPR contains an independent opening clause and Art. 85 Para . BeckOK.InfoMedienR/Cornils, 34th edition [as of February 1, 2021], Art. Wenzel/von Strobl-Albeg loc. 7 paragraphs 122 to 125, 127 to 128 and 130).
36
ff) A referral to the Court of Justice of the European Union pursuant to Art. 267 (3) TFEU is not necessary after all. In the event of a dispute, there is no question of relevance to the decision on the interpretation of Union law that has not already been clarified by the case law of the Court of Justice or cannot be answered unequivocally (on this standard cf. ECJ, judgment of October 6, 1982 - 283/81, ECR 1982, 3415 paragraph 21 = NJW 1983, 1257 - Cilfit and others; Judgment of 6 October 2021 - C-561/19, NJW 2021, 3303 paragraphs 33, 36 and 39 to 49 - Consorzio Italian Management and Catania Multiservizi).
37
3. There is no dispute between the parties that the plaintiff did not consent to the use of her likeness on the posters pursuant to § 22 sentence 1 KUG.
38
4. As a result, the Court of Appeal rightly considered the use of the plaintiff's picture on the defendant's posters to be permissible under Section 23 (1) No. 4 and (2) KUG.
39
a) Contrary to the opinion of the appeal, the plaintiff cannot successfully claim that § 23 para. 1 no. 4 KUG cannot intervene in favor of the defendant because the portrait in question was made to order.
40
aa) According to its wording, this exclusion does not contain any further requirements than the requirement that the production of the portrait must be based on an order.
41
bb) However, the justification for the fact of exclusion can be found in the legislative material on § 23 Paragraph 1 No. 4 KUG that the person depicted "in the event that a portrait is ordered ... [enters] a kind of trusting relationship with the artist that goes further Consideration of his interests is required" (RT-Verhandl. 11-II 1905/06 No. 30, p. 1540; cf. also LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; Götting in Schricker/Loewenheim, copyright , 6th edition, § 23 KUG marginal number 101 with reference; Specht in Dreier/Schulze, UrhG, 7th edition, § 23 KUG marginal number 43; Wenzel/von Strobl-Albeg loc. cit. Chapter 8 marginal number 87).
42
(1) If the person depicted is also the customer of the portrait, he is usually in a contractual relationship with the artist, which justifies his confidence that the artist will only (further) use the portrait for his own artistic purposes with his consent.
43
(2) If the order is placed by a person other than the person depicted, there is usually no contractual relationship between the person depicted and the artist. However, this does not change the fact that the person depicted enters into a relationship of trust with the artist through their decision to make themselves available for the production of a portrait on the basis of an order - which does not necessarily come from themselves. In such a case, she can therefore expect that the artist will only use the portrait for his own interests, which are fundamentally protected by artistic freedom, with her consent.
44
(3) If the person actually depicted is not identical to the person who is (allegedly) depicted from the point of view of a not inconsiderable part of the audience addressed, according to the spirit and purpose of the provision, the person actually depicted, but not the supposedly depicted person, can be sued against the Objecting to the use of the image that it was made to order. Only between the person actually portrayed and the artist can a relationship of trust arise due to the circumstances of the creation of the image, which prevents its dissemination or display for a higher interest in art.
45
cc) According to these principles, the plaintiff cannot successfully claim that the portrait was made to order. Since the image actually shows D.F. and not the plaintiff, a relationship of trust may have arisen between D.F. and the artist, which restricts the application of the justification under Section 23 (1) No. 4 KUG.
46
b) As a result, the Court of Appeal correctly held that the use of the plaintiff's picture on the defendant's posters was justified under Section 23 Paragraph 1 No. 4 and Paragraph 2 KUG.
47
aa) The requirements of Section 23 Paragraph 1 No. 4 KUG are met if the distribution or display of the portrait serves a higher interest in art. A distribution of the portrait exists when (in particular) physical copies of the portrait are passed on, a display when it is made visible to the public (cf. Götting in Schricker/Loewenheim aaO § 22 KUG marginal number 36 f.; Fricke in Wandtke/Bullinger, copyright , 5th edition, Section 22 KUG marginal number 8 f.; Specht in Dreier/Schulze, loc. cit. Section 22 KUG, marginal number 9 to 10a; BeckOK /Meckel/Hentsch, copyright, 4th edition, Section 22 KUG, paragraphs 14 and 16; Wenzel/von Strobl-Albeg, loc. cit., Chapter 7, paragraph 139 f.). The dissemination or display of the portrait serves an interest in art if it is carried out for a purpose falling under Art. 5 Para. 3 Sentence 1 GG (cf. OLG Celle, ZUM 2011, 341, 345 [juris para. 32]) . The protection conferred by Article 5(3) sentence 1 GG does not depend on a specific artistic quality (cf. BVerfGE 79, 369, 377 [juris para. 18]; BGH, GRUR 2021, 1222 para. 31 with further references). It is not necessary for the image used to be a work protected by copyright (LG Berlin, ZUM-RD 2014, 105, 107 [juris para. 26]; LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; LG Hamburg, NJW-RR 2017, 1392, 1392 f. [juris para. 32]); Götting in Schricker/Loewenheim aaO § 23 KUG marginal number 103; Fricke in Wandtke/Bullinger loc. cit. Section 23 KUG marginal number 41; Woodpecker in Dreier/Schulze loc. cit. § 23 KUG marginal number 43).
48
However, anyone who does not pursue a purpose that falls within the scope of protection of artistic freedom under Article 5 (3) sentence 1 of the Basic Law, but merely wants to satisfy his business interests by exploiting the likeness of another person for advertising purposes cannot invoke Section 23 (1) No. 4 KUG (cf. RT-Verhandl. 11-II 1905/06 No. 30, p. 1540; Götting in Schricker/Loewenheim loc. cit. § 23 KUG marginal number 102; Fricke in Wandtke/Bullinger loc / Schulze loc. cit. § 23 KUG marginal 43; on § 23 (1) no. However, it should be noted that the advertising for a work of art - just like the work of art itself - enjoys the protection of artistic freedom in accordance with Art. 5 (3) sentence 1 GG in its so-called sphere of action (cf. BVerfGE 77, 240, 251 [juris 31]; BGH, judgment of December 1, 1999 - I ZR 49/97, BGHZ 143, 214, 229 f. OLG Celle, ZUM 2011, 341, 345 [juris para. 32]; LG Hamburg, NJW-RR 2017, 1392, 1393 [juris para. 37 f.]; Specht in Dreier/Schulze aaO § 23 KUG para. 43; BeckOK .Copyright/Engels aaO § 23 KUG Rn. 21). A predominance of economic over artistic purposes does not exclude the scope of § 23 Para. 1 No. 4 KUG (but probably VerfGH Berlin, NJW-RR 2007, 1686, 1688 [juris marginal note 42] with further references; OLG Düsseldorf, AfP 2014, 454, 455 [juris para. 17]; LG Düsseldorf, judgment of November 28, 2012 - 12 O 545/11, juris para. 28; Engels in Möhring/Nicolini, copyright, 4th edition, § 23 KUG para. 21 ; BeckOK.Copyright/Engels aaO § 23 KUG marginal number 21; Wenzel/von Strobl-Albeg aaO chapter 8 marginal number 89 f.), but must be taken into account when weighing interests.
49
If the scope of § 23 Para. 1 No. 4 KUG is open, the assessment of whether the distribution or display of the plaintiff's portrait serves a higher (i.e. overriding) interest in art requires a weighing - which must be fully examined under revision law - between the The plaintiff's interest in protecting her personality and the interest perceived by the defendant in marketing a work of art that she is responsible for. The examination is to be based on a normative standard that takes sufficient account of the conflicting interests (on Section 23 (1) No. 1 KUG cf. BGH, judgment of November 22, 2011 - VI ZR 26/11, NJW 2012, 763 para 24; BGH, GRUR 2021, 643 para. 27 - Urlaubslotto, with further references; cf. also BVerfG, NJW 2018, 1744 paras. 18 to 22; BGH, GRUR 2021, 1222 para. 34; OLG Celle, ZUM 2011, 341, 345 [juris para. 32]; LG Düsseldorf, judgment of November 28, 2012 - 12 O 545/11, juris para. 28; OLG Düsseldorf, AfP 2014, 454, 455 [juris para. 17]; LG Berlin, AfP 2015 , 177, 170 [juris paras. 30 to 40]; LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; LG Hamburg, NJW-RR 2017, 1392, 1393 [juris para. 39 f.]; LG Darmstadt, CR 2020, 47, 48 [juris para. 23 f.]; LG Berlin, AfP 2020, 264, 266 f. [juris para. 52 to 56]; Dreyer in Dreyer/Kotthoff/Meckel/Hentsch loc paragraph 56).
50
A legitimate interest of the person depicted within the meaning of Section 23 (2) KUG is violated if the image has an inherent content of infringement that has not yet been taken into account in the assessment according to Section 23 (1) No. 4 KUG, for example due to the way in which it was obtained or Presentation (cf. BGH, judgment of March 6, 2007 - VI ZR 51/06, GRUR 2007, 527 para. 33; Judgment of March 10, 2009 - VI ZR 261/07, GRUR 2009, 584 para. 15; BGH, NJW 2012, 763 para. 30; BGH, judgment of September 29, 2020 - VI ZR 449/19, GRUR 2021, 106 para. 27).
51
bb) Insofar as the use of a portrait coincides with a verbal expression, the latter must also be included in the examination of the question of whether the personality rights of the person depicted are being violated (cf. BGH, judgment of October 28, 2008 - VI ZR 307/07, BGHZ 178, 213 para. 19 mwN). For this purpose, the objective meaning of the statement must be determined from the point of view of an unbiased and reasonable average audience (cf. BVerfGE 114, 339, 348 [juris para. 31]; BVerfG, decision of November 11, 2021 - 1 BvR 11/20, juris para 17; BGH, judgment of April 27, 2021 - VI ZR 166/19, GRUR 2021, 1096 para. 11 with further references). The interpretation of the meaning is subject to full review by the Court of Appeal (cf. BGH, GRUR 2021, 1096 para. 11 with further references). The starting point is the wording of the statement, which, however, cannot definitively define the meaning. In addition, the overall context in which the statement was made must be taken into account. Distant interpretations are to be discarded. If the meaning is clear based on this standard, it is to be used as a basis for further examination. However, if it is shown that an unbiased and understanding public perceives the statement as ambiguous or if significant parts of the public understand the content differently, further examination must assume that the content is ambiguous (cf. BVerfGE 114, 339, 348 [juris para. 31 ]; BVerfG, decision of November 11, 2021 - 1 BvR 11/20, juris para. 17; BGH, GRUR 2021, 1096 para. 11 with further references). On the other hand, statements that appear ambiguous to such an extent that they are not understood as an independent assertion of a specific state of affairs, but are readily recognized as factually incomplete and in need of supplementation are missing, on the other hand, in the case of statements, particularly in the case of slogans and keyword-like statements (cf. BVerfGK 18, 33, 40 para. 23; BGH, judgment of March 11, 2008 - VI ZR 7/07, NJW 2008, 2110 para. 14; judgment of January 26, 2021 - VI ZR 437/ 19, GRUR 2021, 875 para. 23).
52
cc) The Court of Appeal assumed that the portrait served a higher interest in art. The show presented by the defendant and thus also the posters as advertising material fell within the scope of protection of artistic freedom according to Art. 5 Para. 3 GG. The fact that the show cannot be classified as an artistically high-quality musical with the staging of a storyline does not conflict with the character as a work of art, but ultimately consists only of a series of songs by the plaintiff, which are sometimes interrupted by short text passages, but without a stringent presentation of the plaintiff's life. The defendant's show as such is not subject to any competition law or copyright injunctive relief by the plaintiff. It is true that anyone who does not primarily pursue artistic purposes by exploiting the likenesses of another person, but merely wants to satisfy his business interests with regard to advertising purposes, cannot invoke the exceptional provisions of Section 23 (1) No. 4 KUG. However, that is not the case here. The defendants' posters served to draw the public's attention to a show about the life of the plaintiff, in which the plaintiff's songs were performed. There is neither an image transfer nor an attention-grabbing with regard to a "foreign" product, but rather an accurate description of the content of the show.
53
The publication of the plaintiff's picture on the posters would not violate her legitimate interests within the meaning of Section 23 (2) KUG. In the context of the consideration, the artistic freedom of the defendant takes precedence over the general right of personality of the plaintiff in the form of her right to her own picture. Only the social sphere and not the private sphere of the plaintiff is affected, because she has performed the songs of the show publicly during her professional life and it is in a purely economic interest to exploit her popularity financially according to her own ideas.
54
The posters did not contain any untrue statements about their involvement in the show. It is undisputed that there is no express reference to this; Rather, it is clear to the average recipient through the phrase "THE tina turner STORY" that the plaintiff's story is being told in the show "SIMPLY THE BEST". The unavoidable impression of the plaintiff's participation in the show is also not given. It is unlikely that a recipient, based on the appearance of the posters, would assume that the plaintiff, who was over 80 at the time the posters were published, was personally present or even assumed that she had indisputably ended her active career more than ten years ago. The average recipient does not assume that she will appear on the defendant's show as part of a so-called comeback. Such a return, which would be a sensation in music circles, would in no case be announced by posters such as the one at issue, which made no mention of it at all, given the applicant's worldwide fame. The average viewer of the poster thus gets the impression that a singer who looks similar to the younger plaintiff is appearing in the defendant's show. Nothing else follows from the use of the plaintiff's name in the phrase "THE tina turner STORY". From the point of view of the average recipient, it is merely a synopsis of the defendant's product.
55
The unavoidable impression is also not given that the plaintiff supports the show and thereby gives it a special authenticity. It is doubtful that an average recipient would give any further thought to whether the show was being carried out with the plaintiff's consent or support. Even if this is the case in individual cases, it does not necessarily follow that he assumes that consent will be granted; it is also possible that he does not consider this to be necessary.
56
As a result, this assessment stands up to legal scrutiny.
57
dd) Contrary to what the appeal on the law says, the application of Section 23 (1) No. 4 KUG does not conflict with the fact that the defendant used a portrait of the plaintiff to advertise another art form - in this case a tribute show.
58
(1) The wording of the provision, which refers to whether the dissemination or display of the portrait - not the portrait itself (cf. Specht in Dreier/Schulze loc use of the image for another work of art without further ado. It also doesn't matter whether the other work of art is by the same artist who created the portrait. Against the background of the broad scope of protection of artistic freedom under Art. 5 (3) sentence 1 GG described above (cf. paras. 47 f.), the advertising of the other work of art is also covered by the scope of the provision. This view is not contradicted by the fact that the Senate did not (also) apply this provision in its "Marlene Dietrich" decision, but only applied Section 23 (1) No. 1 KUG. In this case, there was no connection between the advertised products and the musical that was recognizable to third parties, so that artistic freedom was not relevant (cf. BGHZ 143, 214, 229 f. [juris para. 74]).
59
(2) Although the Court of Appeal initially raised the question of whether the portrait itself serves a higher interest in art, in its further explanations it focused on the exploitation and publication of the portrait. In essence, it has thus at least affirmed the display of the portrait. The revision raises no objections to this; Legal errors are not evident in this respect either. There is also no doubt that the defendant's show falls within the scope of protection of artistic freedom.
60
ee) The appeal is also not successful because the Court of Appeal did not already carry out the necessary balancing of interests within the framework of § 23 Para. 1 No. 4 KUG, but only during the examination required under § 23 Para Distribution or display of the image violates a legitimate interest of the person depicted. The decisive factor is whether the court of appeal on both sides included all aspects to be considered in the weighing of interests and weighted them without making any legal errors.
61
ff) With the complaint that the Court of Appeal incorrectly referred to whether the defendant with the posters for her show created the undeniable impression of the plaintiff's participation or support, the appeal also fails. This does not require a decision as to whether this standard developed for the right of expression can be transferred to the constellation of the dispute. It can also remain open whether, in view of the overall effect of the posters, one can assume a coherent statement of facts that is meaningful in itself. Irrespective of this, the Court of Appeal came to the correct conclusion that the posters in any case did not contain any untrue statements of fact.
62
(1) The Court of Appeal assumed that the express assertion that the plaintiff in the appear in the defendant's advertised show or take part in it in any other way. The Court of Appeal did not explicitly state that the posters also did not contain the express assertion that the plaintiff had consented to the performance of the show or supported it, but it also denied the substance of the matter. This assessment is correct and is not challenged by the revision.
63
(2) The posters also do not contain any ambiguous statements.
64
The Court of Appeal ruled out the possibility that a recipient would assume that the plaintiff was participating in the defendant's show based on the appearance of the posters. The reason given was that the plaintiff was over 80 years old and that her career officially ended more than ten years ago, and that a comeback by the plaintiff would be announced in a different form and would also take place in larger halls. The statement of the plaintiff's name was related solely to the content of the show by the court of appeal; at best, the impression arises that a singer who looks similar to the younger plaintiff is appearing in a show in which "the Tina Turner story" is being told. There is no objection to this assessment. Contrary to the opinion of the appeal, it does not contradict the previous finding of the court of appeal that the average recipient sees the picture on the posters as a representation of the plaintiff. These are different test items. The Court of Appeal first checked whether there was a picture of the plaintiff and then determined the message content of the posters. A show about the songs and life of the plaintiff can be advertised with a likeness of the plaintiff even if she does not appear on the show herself.
65
The posters are also not ambiguous because a significant part of the audience addressed takes the information from them that the plaintiff supports the defendant's show, for example by agreeing to its performance. The Court of Appeal did not explicitly examine this question. However, it has already considered it doubtful that an average recipient would give it any further thought at all; even if this is the case in individual cases, it is possible that he does not consider the plaintiff's consent to be necessary. There is no objection to this assessment. According to the overall effect of their image and word components, the posters do not contain any statement as to whether the plaintiff consented to the defendant's show. In order to get such an impression, the recipients would have to think about a connection between the plaintiff and the defendant's show, detached from the content of the posters. Neither the findings of the Court of Appeal nor other circumstances suggest that a significant proportion of the recipients would have had a misconception about this - also taking into account their possible previous knowledge about the plaintiff. The fact that there is a musical authorized by the plaintiff does not change this, which is emphasized by the appeal. The plaintiff has not substantiated the notoriety of this musical; Nor is it otherwise apparent that there would have been any significant confusion with the defendant's show.
66
(3) The Court of Appeal also applied the standard applicable in the right to utterance for hidden ("between the lines") assertions, according to which it must be examined whether an additional statement of one's own contained in the interplay of the open statements imposes itself on the reader as an irrefutable conclusion (cf. BVerfGK 2, 325, 238 [juris para. 16]; BVerfG, NJW 2018, 1596 para. 22; BGH, judgment of July 8, 1980 - VI ZR 159/78, BGHZ 78, 9, 14 [juris para 41]; Judgment of June 28, 1994 - VI ZR 273/93, VersR 1994, 1123, 1124 [juris para. 19]; Judgment of July 2, 2019 - VI ZR 494/17, AfP 2019, 434 para. 30 With further references; BGH, GRUR 2021, 1096 para. 12).
67
It can remain open whether these principles also apply to the assessment of poster advertising with only a few verbal elements for an event protected by artistic freedom. In view of the few open statements contained on the posters, which are essentially limited to an illustration and the statement "SIMPLY THE BEST - THE tina turner STORY", the assumption of a concealed factual claim in the case of a dispute is far from correct. The judgment of the Court of Appeal therefore proves to be correct in the final analysis. There is also no need to refer the matter back to the Court of Appeal in order to make further determinations as to the effect of the posters, because the Senate can determine their information content independently.
68
gg) The encroachment on the financial component of the plaintiff's right to her own image is also not illegal because of an image transfer from the plaintiff to the defendant's product.
69
The use of a portrait of the plaintiff with her name ("THE tina turner STORY") increases the audience's attention to the defendant's show compared to an announcement without a depiction of a person who looks deceptively similar to the plaintiff and even more so without naming the plaintiff's name . In addition, an image transfer takes place insofar as the show is also associated with the songs and the life of the world-famous plaintiff by parts of the audience who do not already have such an association through the use of the plaintiff's song title "Simply the best". In this sense, the depiction of a person who looks deceptively similar to the plaintiff is also suitable for giving or strengthening the impression of the authenticity of the show advertised.
70
However, the defendant's show, which is protected by artistic freedom, is designed in a fundamentally permissible manner to achieve such an effect. In addition, the selection of a suitable singer is based on the defendant's own performance. Therefore, advertising a show in which songs by a celebrity singer are sung by a performer who looks deceptively like her, with a portrait of the performer that gives the deceptively real impression of being the celebrity singer herself, is fundamentally of artistic freedom covered. An unjustified encroachment on the asset component of the prominent original's general personality rights would only be associated with advertising for such a tribute show if - as is not the case here - the incorrect impression was given that the prominent original supported it or even had an effect on it with. This applies regardless of the classification of the show to be assessed in the dispute as a musical, which - regardless of the use of the term on one of the posters - is not the subject of the legal dispute. The plaintiff does not claim that the contents of the show are illegal and it is also not apparent.
71
hh) The appeal on the law does not object to an additional infringement content to be taken into account under Section 23 (2) KUG; there are no indications of this either.
72
c) Due to the justification already occurring according to § 23 Section 1 No. 4 and Section 2 KUG, no decision is required as to whether the image used is also a portrait from the field of contemporary history, whose distribution and display according to § 23 Para. 1 No. 1 and Para. 2 KUG is permitted.
73
III. The Court of Appeal also rightly has a claim for injunctive relief because of the use of the plaintiff's name on the defendant's posters according to the plaintiff's main application (application 1 a) from § 1004 para. 1 sentence 2, § 823 para. 1 BGB, Art. 1 para 1, Article 2 Paragraph 1 GG and § 12 sentence 2 BGB negative.
74
1. The Court of Appeal stated that in the dispute there was no unjustified presumption of name according to Section 12 Clause 1 Case 2 BGB. There are fundamental doubts as to whether the provision is applicable at all. In essence, the plaintiff is not opposed to the assumption of a name, but to the use of her name for advertising purposes. In addition, there are doubts as to whether the use of the phrase "THE tina turner STORY" constitutes use of the plaintiff's name, because the defendant - as becomes clear from the addition "STORY" - merely refers to the content of the event it is advertising. In any case, the defendant's interests took precedence over those of the plaintiff. In particular, the recipients were not deceived by using the name within the phrase "THE tina turner STORY". The naming is primarily a summary of the "story" that the defendant is performing with songs by the plaintiff.
75
There is an encroachment on the financial component of the plaintiff's general right of personality. By naming her name on the poster, the defendant had infringed on the plaintiff's right to decide on the use of her name for advertising purposes. However, this encroachment is not unlawful because the interests of the defendant, who can invoke her artistic freedom, deserve priority over the interests of the plaintiff in a decision on the use of her name.
76
This assessment stands up to legal scrutiny.
77
2. The Court of Appeal correctly denied any use of the name within the meaning of § 12 Clause 1 Case 2 BGB.
78
a) If the interests of the entitled person are violated because another person uses the same name without authorization, the entitled person can demand a cease-and-desist from the other person according to § 12 sentence 1 case 2, sentence 2 BGB if further impairments are to be feared. The name protection also extends to an artist name of the person addressed (cf. BGH, judgment of March 18, 1959 - IV ZR 182/58, BGHZ 30, 7, 9 [juris para. 9]; judgment of October 5 2006 - I ZR 277/03, BGHZ 169, 193 para. 10 - kinski-klaus.de; Wenzel/Burkhardt/Peifer loc.cit. chapter 10 para. 40). An unjustified presumption of name according to § 12 sentence 1 case 2 BGB exists if a third party uses the same name without authorization, resulting in confusion and interests of the bearer of the name that are worthy of protection are violated (cf. BGH, judgment of September 28, 2011 - I ZR 188/ 09, GRUR 2012, 534 para. 8 = WRP 2012, 1271 - Landgut Borsig; Judgment of December 10, 2015 - I ZR 177/14, GRUR 2016, 749 para. 15 = WRP 2016, 877 - Landgut A. Borsig). The use of a third party's name within the meaning of § 12 sentence 1 case 2 BGB also exists if the third party attaches the name of the entitled person to himself as a company name, as an establishment designation or as another designation of a company or designates someone else with the name in question. The fact that descriptive suffixes are added to the name does not prevent the use of the same name. The traffic does not pay attention to these descriptive additions, but to the distinctive name (cf. BGH, GRUR 2012, 534 para. 11 - Landgut Borsig; GRUR 2016, 749 para. 19 - Landgut A. Borsig).
79
However, not every use of someone else's name can be regarded as "use" within the meaning of Section 12 of the German Civil Code. The purpose of the provision is solely to protect the name in its function as a means of identifying the person who bears it. For this reason, only uses that are likely to cause confusion about the name are prohibited. For this purpose, a use of the name by a third party as a name or a trademark as well as a use by which the bearer of the name is associated with certain facilities, goods or products with which he has nothing to do can be considered. For this it is sufficient that the wrong impression can arise in traffic that the bearer of the name has granted the user the right to use the name accordingly (BGH, GRUR 2012, 534 para. 12 - Landgut Borsig; GRUR 2016, 749 para. 24 - Landgut A .Bursig).
80
The concept of interest within the meaning of Section 12 BGB is broad and, outside of business transactions, not only includes a financial or business interest, but any interest of the bearer of the name, including a purely personal or immaterial and even a mere affective interest. In the area of the civil name, the interest of the bearer of the name is enough not to be confused with other people or to be related. In contrast, the unauthorized person cannot usually refer to matters worthy of protection that would have to be taken into account in his favour, so that the unauthorized use of the name already indicates a violation of interests (cf. BGH, GRUR 2012, 534 para. 43 and 45 - Landgut Borsig; GRUR 2016 , 749 para. 32 f. - Landgut A. Borsig).
81
b) According to these principles, the defendant did not use the name of the plaintiff within the meaning of § 12 sentence 1 case 2 BGB.
82
aa) The plaintiff assumes, as evidenced by her applications, that the title of the show is "SIMPLY THE BEST - THE tina turner STORY" and that the plaintiff's (artist) name is part of this title. According to this - at least when looking at the graphically separate (sub)title "DIE tina turner STORY" independently - the plaintiff's name would have been used insofar as this would give the incorrect impression of her participation in the show (on the use of a name as a work title cf . Wenzel/Burkhardt/Peifer, loc. cit., Chapter 10, paragraph 45 with further references; for use as a product designation, see MünchKomm.BGB/Säcker, 9th edition, § 12, paragraphs 116 to 118). The other components "THE ... STORY" merely represent a descriptive addition and do not preclude the use of the name.
83
bb) According to the findings of the Court of Appeal, which are free of legal errors and not challenged by the appeal, the title of the defendant's show is "SIMPLY THE BEST", while the addition "THE tina turner STORY" is an accurate description of the content of the show. According to this, there is attribution that does not fall within the scope of § 12 sentence 1 case 2 BGB.
84
3. The judgment of the Court of Appeal that the plaintiff is not entitled to an injunctive relief against the defendant because of an unjustified interference with the asset value of her right to her own name (Art. 1 Para. 1, Art. 2 Para. 1 GG) is free of legal errors.
85
a) Outside the scope of § 12 BGB, the use of a person's name in the non-material (cf. BGHZ 143, 214, 218 f. [juris para. 49] - Marlene Dietrich) and - in the case of use for commercial purposes - in interfere with the financial component of the general right of personality according to Art. 1 Para. 1, Art. 2 Para. 1 GG in the expression of the right to one's own name. The general right of personality supplements the existing simple legal regulations (cf. BGHZ 30, 7, 11 [juris para. 15]; on §§ 22, 23 KUG cf. also BGH, judgment of October 13, 2015 - VI ZR 271/14, BGHZ 207, 163 para. 15). Even in the area of application of the right to a name as part of the general right of personality, the legality of an encroachment must be assessed on the basis of a comprehensive weighing of goods and interests, taking into account the legal positions of both sides (cf. BGHZ 143, 214, 219 f. and 230 [juris paras. 51 and 75 ] - Marlene Dietrich, mwN; BGH, judgment of June 5, 2008 - I ZR 96/07, GRUR 2008, 1124 para. 12 and 15 = WRP 2008, 1524 - crumpled cigarette packet; judgment of June 5, 2008 - I ZR 223 /05, WRP 2008, 1567 para. 13 f.; BGH, GRUR 2021, 643 para. 67 - holiday lottery).
86
b) The Court of Appeal proceeded from these principles and, in order to weigh up the interests of the plaintiff's right to her own name, referred to his explanations when weighing up the interests of the right to her own image. This is not objectionable because the Court of Appeal already focused on the overall effect of the posters objected to by the plaintiff, in which the use of a picture coincides with the attribution of a name, when assessing the protection of the image. It is not apparent and is not asserted either by the appeal or by the response to the appeal that other aspects should be included in a weighing of interests between the plaintiff's right to its own name and artistic freedom and - additionally - the entrepreneurial freedom of the defendant or a change in the weighting of the points of view would have to be made.
87
IV. As a result, the Court of Appeal rightly dismissed the action also after the auxiliary requests (Motions 2 a and 2 b). The plaintiff lacks the need for legal protection for these applications.
88
1. The lack of a need for legal protection represents a procedural defect that must be taken into account ex officio. The question of whether there is a legally protected interest in using a court must therefore also be examined in the appeal instance, regardless of whether the defendant has raised a corresponding complaint (cf. BGH, judgment of April 23, 2020 - I ZR 85/19, GRUR 2020, 886 para. 19 = WRP 2020, 1017 - price change regulation, with further reference).
89
2. The plaintiff lacks the need for legal protection for the auxiliary requests because the addition of the words "without at the same time adding an addition that excludes any possibility of confusion" does not lead to a change in content compared to the main requests.
90
a) Exceptions do not need to be included in the complaint if this alone describes the specific form of infringement. It is not up to the plaintiff to point out to the defendant what he is allowed to do (cf. BGH, judgment of February 11, 2021 - I ZR 227/19, GRUR 2021, 758 para. 18 = WRP 2021, 610 - legal advice from an architect ). However, an over-determination that does not observe this principle is fundamentally harmless - especially with regard to the principle of certainty (cf. BGH, judgment of February 2, 2012 - I ZR 81/10, GRUR 2012, 945 para. 24 f. = WRP 2012, 1222 - Tribenuronmethyl; Judgment of December 12, 2019 - I ZR 173/16, GRUR 2020, 401 para. 13 = WRP 2020, 465 - ÖKO-Test I).
91
b) The phrase "without at the same time adding an addition that excludes any possibility of confusion" in the plaintiff's auxiliary requests represents such an overdetermination. In combination with the main requests, however, the plaintiff lacks the need for legal protection for the auxiliary requests. If the inner-procedural condition under which the auxiliary requests are made occurs because the main requests are unsuccessful, they cannot be successful either, because they do not represent an aliud or minus to the main requests, but are identical to them in terms of content.
92
C. Thereafter, the revision is to be rejected with the consequences of costs from § 97 Para. 1 ZPO.
