13 - Case 10: The late famous tennis player

Summary

Case

For advertising purposes, an electronics company used a photograph of a famous tennis player, depicted in action during a tournament match. This photograph was well-known, as it had appeared in the press some years earlier. In the advert, just three words (‘Energy’, ‘Power’, ‘Speed’) and the name of the company were written underneath the photograph.

1. (a) Can the tennis player, who had not authorised this advert, sue the company for injunction and compensation?

2. (b) Do the damages include skimming off the profits earned by the company through their use of the photograph?

3. (c) What would be the result if the famous tennis player had died prior to the publication but he has a surviving spouse and child?

Discussions

Austria

Operative rules

The tennis player can bring an action for forbearance, abatement and for publication of the judgment. However, he is not entitled to claim compensation for his economic and non-economic loss. He can also obtain a hypothetical licence fee under the law of unjust enrichment.

If the close relatives are the trustees of the deceased tennis player they can bring an action in his name under the law of unjust enrichment.

Descriptive formants

Can the tennis player, who had not authorised this advert, sue the company for injunction and compensation?

Even if the illustrated person is well-known, his right to image (§ 78 UrhG) can be injured.