Hard Court Heroes German Federal Court of Justice Case I ZR 60/09 With an introductory Comment

• Author: Dennis Jlussi
• Position: Dipl. Jur., Research Assistant, Institur for Legal Informatics University of Hannover
• Pages: 249-256

Hard Court Heroes

2011

249

3

Hard Court Heroes

Bundesgerichtshof (German Federal Court of Justice)

Case I ZR 60/09, Judgement of 28 October 2010 (“Hart-

platzhelden”) Case Review and Comment

by Dennis Jlussi, Dipl. Jur., Research Assistant, Institur for Legal Informatics University of Hannover

© 2011 Dennis Jlussi

Everybody may disseminate this ar ticle by electronic m eans and make it available for downlo ad under the terms and

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de/urn:nbn:de:0009-dppl-v3-en8 .

This article may also b e used under the Creative Commons BY-NC-ND 3.0 Unported License, available at h t t p : //

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Recommended citation: Dennis Jlussi, Ha rd Court Heroes, annotations to Bundesgericht shof, Case I ZR 60/09, Judgement of

28 October 2010 (“Har tplatzhelden”), 3 JIPITEC 250 1(2011)

A. Lower instances:

1

Landgericht (District Court) Stuttgart,

Case 41 O 3/08, Judgement of 8 May 20081

Oberlandesgericht (Court of Appeals) Stuttgart, Case

2 U 47/08, Judgement of 19 March 20092

B. Background

2

The German website “Hartplatzhelden“3 is a website

that allows its users to upload and share short videos

of amateur football

4

games. The regional football as-

sociation WFV5 sued Hartplatzhelden in 2007 and

requested them to cease and desist from publishing

videos of football matches that took place in WFV

competitions. WFV won its case in both preceding

instances, but the 1st panel of the Bundesgerichtshof

(BGH) disagreed and decided that Hartplatzhelden’s

service does not involve unfair commercial practices

and does therefore not violate WFV’s rights.

C. Unfair Commercial Practices

and Intellectual Property

3 WFV based its claim mainly on German law on un-

fair commercial practices. Such law is not well har-

monised in the EU; existing directives focus on com-

mercial practices towards consumers.6 German law

(UWG)7 constitutes – under certain conditions, that

are discussed in the judgement – a protection against

the exploitation of one’s commercial performances

by third parties; jurisprudence has developed quite

a few areas of application.

4 The legal protection of commercial performances is

independent from Intellectual Property rights, and

may therefore be applicable when no IP rights ap-

ply, or even after the term of protection has already

expired.8

5

Football matches are, as the panel explains in ac-

cordance with its earlier jurisprudence

9

, not covered

by intellectual property rights. Football is not an ar-

tistic performance; it lacks a screenplay, directions

or anything else that could be seen as an artistic ex-

pression. The right to record or transmit audiovisual

information of football games can only be derived

from domiciliary rights; the owner of the football

court or stadium can set up house rules that prohi-

bit audiovisual devices, recordings or transmissions.

Individually permitted exceptions from such house

rules would not constitute a license in the sense of

-

tion of or extension to the consent to the attendance

of the “licensee” on private property.10

6

Such house rules can, as general terms, become part

of the agreements between the organizer and each

spectator.

11

No such house rules existed for the foot-

ball courts where the objected video footage had

been taken.