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Instructions for advertising with politicians & celebrities - save money like Sixt with #Neuland?

Instructions for advertising with politicians & celebrities - save money like Sixt with #Neuland?

Winning a celebrity as an advertising medium is expensive. If you do your research here, an advertising campaign with national celebrities will cost you up to 1,000,000 euros. Established companies can afford that, but it's too much for a small startup. Isn't that cheaper?

This is probably what the car rental company Sixt thought and advertised with ex-finance minister Oscar Lafontaine in 1999 without paying him for it. It was followed by former Chancellor Schröder, Ursula von der Leyen and currently the may Chancellor Merkel again as a free advertising figure act.

Many ask themselves: Is that a Trick? Can anyone do it? Is there a catch?
The answers are: No. Yes. Naturally.

In the first part I explain the basic legal rules to show how this type of advertising works. The second part contains one practical guide, on the basis of which a prominent person can be "won" as an advertising medium without being asked and unpaid. The third part is the most important and should definitely be read. That's the part with the hook.

Table of Contents

Part 1: Politicians, Celebrities and Human Dignity

Articles 1 and 2, paragraph 1 of the Basic Law (GG) give rise to the so-called "general right of personality". This means that everyone has the right to determine who is allowed to use their image (right to their own image, more in-depth at pressrecht-aktuell) and their name (right to their own name). Be it for advertising purposes, press reports or as an art motif.

Therefore, the topmost principle is: Nobody may use someone else's picture or name without being asked.

Note: You can find more information on the subject in my articles "Advertising with celebrities - Can you advertise with Guttenberg?" And "Social media: legal admissibility of the" secret "Clooney spot that Nespresso allegedly wants to ban ..."

Freedom of expression

If the above principle were absolute, we would have a real problem with our free and democratic society. Newspapers are not allowed to report on celebrities with photos by naming their names. And satirists could not direct their criticism against certain politicians or economic giants.

Therefore there is a counter regulation in the Basic Law. Article 5 of the Basic Law, which offers many freedoms that not only allow us to have an opinion, but to express it freely and in many forms. These are in particular freedom of expression, freedom of the press and freedom of art. These freedoms, in turn, are not themselves limitless. Otherwise you could express your opinion with the most nasty insults or denounce your neighbors on the Internet for mowing the lawn during the lunch break.

The right to one's own image

But where are the limits of what is permitted? The legislature answered this question in more detail in Sections 22 and 23 of the Art Copyright Act (KunstUrhG). These regulations regulate the right to one's own picture. Unfortunately, the legislature has not regulated the right to one's own name in such detail, but this provision can be applied to names accordingly.

  • Section 22 KunstUrhG basically repeats the above-mentioned principle. Without consent, it is not allowed to exhibit or distribute the images of a person.
  • § 23 KunstUrhG helps us to define the limits of what is permitted, within which we may use the images of other people to express our opinion. We are primarily interested in paragraph 1 number 1 and paragraph 2.

Paragraph 1 number 1 allows pictures of people in the Connection with events in contemporary history to use if a public interest persists in these events. The exception allows politicians, for example, to portray celebrities from show business at least in public space, as well as criminals in the context of significant processes (more on this here under “Images and photographs”).

However, paragraph 2 says that this must not violate any legitimate interests of this person. In particular, that means that you can neither be the person exploit economically may still hurt their honor.

Note on image rights: The right to depict the person (right to the subject) does not entitle the user to use all images on which the person is depicted (right to the image). So you need to acquire the appropriate image rights for the campaign. Thanks for pointing this out to colleague Hoesmann.

The Federal Supreme Court to Celebrities in Advertising

With the help of these regulations, the Federal Court of Justice (Germany's highest civil court, in short BGH) has made two groundbreaking decisions in recent years on the unsolicited use of celebrities in advertising:

Case 1: BGH, judgment of October 26, 2006 - I ZR 182/04 (in detail or summary)

In this case it was about Oscar Lafontaine, mentioned at the beginning, who was poked by Sixt without being asked after he resigned shortly after his election as Federal Minister of Finance. Oscar Lafontaine demanded compensation of 100,000 euros from Sixt.

Case 2: BGH, judgment of June 5, 2008 - I ZR 96/07 (detailed and summary)

In this case, British American Tobacco (Lucky Strike) took the reports of physical confrontations between Prince August of Hanover as an opportunity to place the following advertisement. He didn't let that sit on him either and demanded 60,000 euros as compensation for the unsolicited use of his name.

In both cases, the BGH has the Lawsuits dismissed and established the following principles:

  • In principle, one must not use the portrait of a prominent person for advertising purposes without being asked.
  • In principle, however, a commercially directed expression of opinion, i.e. advertising, can also be protected by freedom of expression.
  • But only if the advertising measure not only serves the company's economic interests (pure attention-grabbing), but also offers a not inconsiderable amount of information for the general public.
  • Information content for the general public is given in particular if the advertising relates to a current social or political event and comments on it (satirically).
  • However, it is not sufficient if only the image or advertising value of the prominent person is exploited without reference being made to the specific event.
  • This is especially true if the impression is given that the prominent person identifies with the advertised product.

In the Lafontaine case, the BGH found that the advertising dealt sufficiently with his politically significant resignation as Federal Minister of Finance and not with his person and dismissed his complaint. Prince August of Hanover also lost because the BGH saw a sufficiently interesting discussion of his life as a person in contemporary history who was present in the media.

That about the legal basis. Now it's time to put it into practice.

Part 2: Instructions for using pictures and names of prominent people

  1. We need a prominent person.
    The person has to be prominent enough that the people who come into contact with the advertisement will have an interest in them. That means the more famous the better. A regional politician, for example, would not be sufficient for nationwide advertising (which is always the case on the Internet). But who does nationwide advertising with regional politicians?
  2. This person needs to be at the center of a current event that is of public interest.
    The resignation of a defense minister, theft of a federal minister's company car, a physical attack on a photographer in public and a statement by a federal chancellor on the status quo of Internet development are sufficiently significant. On the other hand, an ordinary political statement or display of wealth is not enough. The rule here is that the more media coverage, the better. Rule of thumb: the event should have made it onto the first page of the Bildzeitung. Preferably a couple of times in a row.
  3. The advertisement must relate to that event, not just to the person.
    This breakup is a bit tricky because a person's prominence is often the result of prominent events. However, this point can be illustrated with the following case, which focuses on Joschka Fischer and Springer Verlag. The prominent events in Fischer's life were certainly his time as a political activist, his appointment as federal foreign minister or the ups and downs of his body size. However, Springerverlag did not refer to any of these events when it mounted Fischer's face on a child to advertise the small format of the Welt-Kompakt. Therefore, there was no event here, but only Joschka Fischer's person in the foreground. And therefore Fischer won the subsequent legal proceedings against Springer (LG Hamburg judgment of October 27, 2006, 324 O 381/06).
  4. The statement made in the advertisement must be an opinion
    The advertising statement must be an opinion. So to comment on the relevant event. Opinions are not facts or facts (here I used cartoons to express the demarcation between fact and opinion). An advertisement from Sixt with the wording “The Chancellor likes to drive SUBARU” would only contain one fact. Here it is advisable to fall back on satire, because this is always an expression of opinion. Tip: Write the ad as if it were a cover for Titanic (The Definitive Satirical Magazine).
  5. Opinion must not be lost alongside advertising
    Of course, the aim of advertising is to boost sales. However, this must not be the sole purpose of the advertisement or push the opinion into the background. For example, it would not have been enough if Sixt had a large-format image of a car in the #NEULAND case and "Come to us, we have the cheapest SUVs"Would have been titled, while in inconspicuous letters"That fits well where Ms. Merkel is discovering new territory“Underneath would be. The following applies here: if already, then already! Don't mess with your opinion.
  6. The impression must not be given that the prominent person identifies himself with the advertised product.
    Again, the point is to comment on the prominent event, not to exploit the prominence of a person economically (at least not directly). For example, if the car manufacturer SUBARU had an advertisement with the slogan "If into uncharted territory, Ms. Merkel would drive a SUBARU“Titled, then you would think Ms. Merkel would find SUBARU a good thing. In order to deepen this point, I recommend these posts at IP | Note and/2003.
  7. The prominent person must not be belittled.
    In doing so, one must neither reduce their honor nor take part in insults or abuse of others (abuse is an irrelevant statement that aims to demean someone, such as "The incident shows that X is stupid as bread"). This does not apply if the prominent person belittles their own honor and one merely points out this defamation. However, it becomes critical when the advertising goes well below the belt and, above all, takes up old incidents again. A prime example is the advertising of the affair portal Ashley Madison with celebrities who became known for their affairs "Fremdgeh-Portal: Horst Seehofer, the ambassador for discreet". In my opinion, this advertising was inadmissible and the operators probably insisted that those affected will not take action against them because of the Streisand effect.

That was it! It's not that difficult to hire a celebrity for free and unsolicited for your own advertising campaign. Just read the gossip press and pick a victim. There are enough high-profile events.

But why does it happen so rarely?

Part 3: The Hook

The hook consists of two parts that are related:

    1. money
    2. Costs of legal proceedings

The prominent person will probably not find it good to stand there unsolicited as an advertising medium. At the same time, she can afford a lawsuit in which she tens of thousands of euros for court costs and lawyers issues. Quite a few entrepreneurs do not.

Of course, if you followed the instructions above, you will likely win the litigation in the end. But if you make one tiny mistake, it's over. Or if the BGH decides to change its legal view. Then you are left with the costs of the proceedings and you also have to compensate the celebrities. And in between there is a dispute over several court instances that has lasted for years.

So you should get this Include costs in your advertising budgetn. In the Lafontaine case, for example, that would be around 130,000 euros (the compensation requested plus procedural costs). Therefore, such advertising is only for financially well-positioned companies and explains why only a few celebrities appear in advertising without being asked.

Although, of course, it can also end well. When Sixt took an interest in Mrs. Merkel about her hairstyle in 2001, she only replied that Sixt could invite her for a convertible ride. But one should not rely on such casual reactions and in any case have the planned campaign checked by a lawyer.

Update note:

June 20, 2013 - I have updated the original article from 2009 and instead of the SIXT advertising on the occasion of the stolen company car of the former Minister of Health Schmidt, I used the # Neuland statement by Ms. Merkel as a starting point.

[callto: book_1]

There are 15 comments on this post
  1. Dear colleagues,

    Very good and descriptive contribution!
    However, it should also be mentioned that the rights to the photography used must of course also be acquired.
    In other words, the person depicted may be used as an “advertising figure” under the conditions described, but this does not mean that the image itself may also be used free of charge. Another cost trap could lurk here if you violate the photographer's copyright.

    Best regards
    T. Hoesmann

    PS - Thanks for the link 😉

    • December 02, 2013, 10:18 am

      So I think everywhere there are only penises from Laurin's as ugly as Schhütt

  2. Great contribution. Yet again.

  3. Clear, interesting and knowledgeable, very good.

  4. August 03, 2009, 10:09 am

    @ Tim Hoesmann: A very good hint. Right, in this case there would be a few thousand euros in (safe) costs. And I'm already looking forward to the continuation of your series on rights to one's own image.

    @Philip, Markus, Safur: Thank you very much, praise is very motivating! 🙂

  5. And what about caricatured images? Here, with certain rules, nobody can claim damages, right? Caricatures are, under certain circumstances, pure freedom of expression.
    Or is (only) the obvious reference to commercial use the “problem”?

  6. Thanks for the informative article!

  7. Very informative article and nicely adapted to the current example. Thanks!

  8. I would be interested in an assessment of the use of #Hastags.

    Could you risk-free on FB / Twitter etc. z. B. Post with "Discover #Merkel #Neuland" and add a purely promotional image without a picture and without direct reference ...?

  9. February 28, 2014, 12:35 pm

    [...] You are also not allowed to exploit the economic value of the people. In other words, you can post a photo that you took of Chancellor Merkel during a speech. But you are not allowed to associate the picture with advertising claims, e.g. B. “Ms. Merkel would also buy our goods”. If you are wondering how Sixt does it, you will find the answer here: "Instructions for advertising with politicians & celebrities - save money like Sixt with #Neuland?" [...]

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