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Intellectual Property, Unfair Competition and Publicity

Intellectual Property, Unfair Competition and Publicity

Convergences and Development

European Intellectual Property Institutes Network series

Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly

Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.

Chapter 6: Celebrities, advertisement and commercial exploitation "publicity rights" in German law

Kerstin Schmitt

Subjects: law - academic, intellectual property law


"The human mind is more fascinated by people than by idea". This statement of McCarthy in his article "Public Personas and Private Property: The Commercialisation of Human Identity" provides a simple but plausible explanation as to why the advertising industry is interested in using celebrities in advertising campaigns. Celebrities fascinate the audience and attract attention. The purpose of using celebrities in advertising is to transmit this attention to the advertised product so that it remains in the audience's mind. The rule is: the more well-known a person is, the greater is the audience that recognises him/her. In turn, the greater is the attention level achieved. The well-known personalities also benefit from their advertising campaigns; advertising contracts are a profitable source of income. The television, cinema or other media create a marketable celebrity identity value. If this identity is used without the celebrity's consent, the question is posed as to whether the law protects the celebrity against the unpermitted use of his/her identity. The answer to this question is the result of a long process in German law. German law differentiates between a general personality right and specific personality rights. Specific personality rights encompass the right to one's image protected in German law under §_22 Kunsturhebergesetz (German Copyright Act of 1907), and the right to one's name protected under §_12 Bürgerliches Gesetzbuch - BGB (German Civil Code).

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