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