Tina Turner – Court Ruling (Germany, 2022)

Tina Turner sued the organiser of a tribute show called "Simply The Best - Die Tina Turner 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) overturned this decision and held that the artistic freedom (Kunstfreiheit) outweighed the personality rights of Ms. Turner, who appealed against this ruling. The German Federal Court of Justice held that a claim for injunctive relief with regard to the use of Ms. Turner's likeness is not applicable on the grounds of the German Civil Code in conjunction with §§ 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.