Hartplatzhelden (Hard Court Heroes) vs. Monopolisation of Sports Event Rights
Published 30 May 2011
Dr Thomas C. Körber and Dr André Soldner of Klinkert Zindel Partner in Frankfurt, Germany, review the recent case of the German regional football association of Württemberg against the operator of the internet platform www.hartplatzhelden.de before Germany’s highest court, the Federal Court (Bundesgerichtshof –“BGH”). The BGH decided that the operator of Hartplatzhelden complied with German law when making video film clips of amateur football matches held by its member clubs publicly available via its internet platform.
Background of the case:
The defendant, “Hartplatzhelden GmbH”, operates an internet platform where users can upload short video clips of amateur football matches up to a length of 90 seconds. Uploading and watching of the video clips is both free of charge; the internet platform is financed by advertising. The claimant, the regional football association of Württemberg, that organizes the leagues and other official matches within the association considered itself to own the exclusive rights to commercially exploit the matches. This view was based on the association’s organizing function. Further, under Article 13 of the association regulations, the association is solely entitled to market the TV- and radio rights in relation to matches of their member clubs. Thus, the association demanded Hartplatzhelden GmbH to cease publication of the video clips. As the football association could not substantiate its claim on any copyrights in connection with the video clips, it claimed infringements under German competition law, in particular on anti-competitive obstruction and misappropriation. The first two instances, the Stuttgart Regional Court and the Higher Regional Court, decided in favour of the football association whereas the latter allowed a further appeal to the highest German court in civil law matters, the BGH.
The BGH dismissed the case and reversed the judgements of the two regional courts by denying the exclusive exploitation rights of the Württemberg football association in relation to the matches of its member clubs. The court held that the publication of the video clips do not constitute an unfair imitation of another party’s protected work under the law against unfair competition or otherwise infringe German law. As general exclusive exploitation rights do not exist, the football association cannot prohibit visitors of football matches to film the matches or scenes of the matches in order to upload them on the internet without specific regulations. Consequently, the association has to accept the publishing of video clips of football matches via the internet portal www.hartplatzhelden.de. The court pointed out that the football association has the opportunity to protect its commercial exploitation rights by ways of implementing rules on the basis of the domiciliary rights of the member clubs.
This controversially discussed case deals with the question of the event organisers’ rights to exclusively exploit any commercial opportunities in connection with the event. On the one hand event organisers seek to monopolise their event and the related rights to refund their investments and to raise further revenues; on the other hand third parties try to also exploit such rights, whether with a commercial or non-commercial focus. This conflict is also well known in connection with the phenomenon of Ambush Marketing. In order to protect the event organisers as far as possible against Ambushers, hosting countries and cities often implement specific laws in relation to the events, such as the London Olympic Games and Paralympic Games Act 2006 and the related Advertising and Street Trading Regulations for the Olympic Games 2012 in London.
In the Hartplatzhelden-case the BGH had the opportunity to solve this conflict in the context of the distribution of event footage via the internet and to generally clarify the legal framework of the exclusive exploitation of marketing rights related to sports events in Germany. In line with previous decisions in the sports sector, in particular with regards to the recognition of so called event trademarks, the court held that German law, neither under the law against unfair competition nor under the constitutional law or other laws, does not grant event organisers such general legal protection under which they can exclusively exploit any commercial rights in connection with their event. Whereas professional football clubs in Germany exercise their domiciliary rights to prevent their visitors from producing any footage of their matches by ways of a specific prohibition in their ticketing terms and conditions, most amateur clubs grant their visitors free entrance and therefore cannot oblige them under such domiciliary rights.
With regards to football, this decision only impacts amateur matches as mentioned above, but in other sports with free entrance for visitors, such as the Tour de France, triathlon or marathon events, similar legal conditions exist. Without specific legal protection of the event organisers, visitors are not prohibited from exploiting commercial rights related to the event, e.g. by producing live footage from the event via smartphones and uploading it via livestream portals on the internet. Obviously such legal status is unsatisfactory for event organisers so that further similar cases can be expected in which organisers advocate for an overall legal event protection. Without such protection it remains the task of organisers and their legal advisors to take all appropriate legal measures under applicable law in order to protect the commercial exploitation of their event.
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