Germany: The Legal Protection of Sports Image Rights
By Dr Fabian Masurat, Taylor Wessing, Attorneys, Hamburg, Germany
In the modern era of professional sports, image rights have become a crucial part of an athlete's commercial portfolio. Especially in football, where players and clubs alike generate significant income from the marketing of their images.
In Germany, the legal framework for image rights must strike a balance between personal rights and commercial interests to ensure the best possible protection.
Image rights from a legal point of view
Image rights include all legal regulations and claims that relate to the use, distribution and publication of images. They concern the rights of persons who are recognisable in an image, as well as the rights of the photographers or creators of the image. In the case of football players, these rights can include their photos, signatures, nicknames and even their personal characteristics, such as celebratory gestures. Football clubs, in turn, use these rights to market merchandise; conclude sponsorship deals; and increase brand awareness.
In Germany, the image rights of athletes are primarily protected by the right to one's own image (Section 22 of the German Art Copyright Act, KUG) and the general right of privacy (Art. 2 para. 1 in conjunction with Art. 1 para. 1 of the German Constitutional Law).
The scope of protection is such that individuals can determine what happens to their own image and prevent unauthorised commercial use. In addition, aspects of copyright and trademark law play a role.
The primary legal instruments governing image rights in Germany include:
- The Copyright Act (UrhG):
Copyright law may be relevant in cases where a player's image is used in a way that involves artistic expression.
- The German Art Copyright Act (KUG):
This law regulates the publication and distribution of images and requires the consent of individuals whose image is used in commercial contexts.
- The German Civil Code (BGB):
Section 823 BGB forms the basis for claims for infringement of image rights and makes it possible to claim damages for unauthorised commercial use.
The importance of image rights
For athletes in Germany, image rights are an important source of income, which, in some cases, can even exceed their salaries. These rights are typically marketed through advertising contracts, licence agreements and merchandising deals. Particularly high-profile players enter into lucrative partnerships with global brands and generate significant income from the commercial use of their images.
Contracts between players and clubs often contain specific clauses on image rights. These clauses regulate the extent to which a club may use a player's image for marketing and advertising purposes. Conflicts often arise when players seek greater control over the use of their image, especially when their personal sponsorship deals conflict with the club's marketing interests.
The role of sports clubs in managing image rights
The German clubs to whom the athletes are contracted also have a strong interest in their players' image rights. They leverage their popularity to strengthen their brand presence, tap into new markets, attract sponsors and promote the sale of fan merchandise. Clubs typically negotiate collective image rights agreements with their players to ensure that they can use team images in advertising campaigns and commercial partnerships, amongst others.
To avoid the invalidity of such agreements, a balance must be struck between maximising commercial opportunities and protecting the personal rights of players. In addition, the unauthorised use of players’ images regularly leads to legal disputes with substantial financial claims.
Key issues and latest developments
Despite the legal framework in Germany, there are still some challenges around sports image rights.
The international nature of sport adds a layer of complexity to image rights management. German clubs and players often work with global sponsors, which requires precise legal structuring to comply with different national regulations. In this regard, the rise of social media platforms has expanded and complicated image rights management. Players can now interact directly with their fans and enter independent sponsorship deals that potentially conflict with their clubs' agreements.
As public figures, athletes are constantly under public scrutiny. This repeatedly leads to legal disputes about the unauthorised use of their images in print media and on online platforms. German courts have increasingly stood up for the protection of athletes against intrusions into their privacy. Landmark decisions, for example in cases involving national team players, have helped to clarify the scope of protection of image rights. The courts are increasingly recognising the economic interests of athletes, but, at the same time, are mindful of upholding the principles of fair use.
Practical measures for protecting image rights
To protect image rights effectively, athletes and clubs in Germany should establish clear contractual provisions. It is essential to formulate precise image rights clauses in players’ contracts, particularly regarding permissible uses and revenue sharing. It is advisable to define specific use cases to avoid potential ambiguities.
In addition, it is necessary to monitor continuously legal developments and regulatory changes, as these can affect existing contracts. Contract amendments may be necessary to take new legal requirements into account. These should always be in writing.
Furthermore, monitoring systems should be implemented to detect unauthorised image uses; identify infringements at an early stage; and, if necessary, take immediate appropriate legal action.
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