Real Madrid vs. Betting Agencies – Part 2 – Are Online Bookmakers allowed to use Photos of Football Stars on their Internet Sites?

Rechtsanwalt Dr. Wulf Hambach

Hambach & Hambach Rechtsanwälte
Haimhauser Str. 1
D - 80802 München
Tel.: +49 89 389975-50
Fax: +49 89 389975-60
In our last edition of Betting-Law-News, we reported on the claims which were lodged by Real Madrid against European online bookmakers alleging unauthorised publication of photos of the football stars.

As reported, photos of „public persons“ (Personen der Zeitgeschichte), such as e.g., football stars from Real Madrid, may not, without contractual agreement, be used for external tangible aims, i.e., in particular, advertising, because of their general personal rights.

The question is where the line between legal and illegal publication of photos of absolute public persons, i.e., the Real Stars, is to be drawn. In answering this question, it is necessary to take a look at the relevant jurisprudence as the legal area of general personal rights is not regulated in legislation but has been developed by the judicature.

A 1995 case is of further help here: In a decision (Decision of the 29/06/1995 – 20 O 67/95) which dealt with an unauthorised use of a photo for a TAZ (German newspaper) advertisement, the District Court of Berlin (Landgericht Berlin) stated the following:

„(…) consideration of the balance between, on the one hand, the publication’s interests and on the other the importance of protecting personal rights must take place. A „public“ picture in the sense of Art. 23 of the KUG (German Artistic Copyright Act) does not in any way exist if pictures of public persons are used for advertising aims. Despite an additional commercial use of a picture it may, however, be covered by the freedom of publication guarantee as the picture contains so much information to which the general public have an interest.“

In this very well reasoned decision, the court went on to say that “picture information” which is not protected would include, in particular, where the person concerned is portrayed or photographed as part of a typical activity for him.

In my opinion, pictures of football stars can therefore be displayed, in particular, where such a picture originates from a football game, i.e., as part of a typical (as work-related) activity for these football stars. Of course, prior to this, the individual photo rights must be clarified with the photographer. In my opinion, it is however, not possible that a football club such as e.g., Real Madrid may admonish international bookmakers because they display photos of football stars which portray the stars carrying out their work activities – the football games. It would certainly be a different story if portraits of these stars were used.

If the individually affected bookmakers have not displayed any portrait photos of the football stars but only scenes from football games in photo format, then Real Madrid will, for once, not be able to book a victory.