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Sources of law
Right of publicity
Is the right of publicity recognised?
While there is no statutory provision, the case law of the German Federal Supreme Court provides protection for the right of personality, of which the right of publicity is one component.
The right of personality is guaranteed by the protection of human dignity and the right to free development of privacy. It comprises the right to keep one’s identity traits from being commercially exploited without consent and the right to have information about one’s personality published only with permission.
The right of personality consists of a non-commercial component, which may be called the right of privacy, and a commercial component, which may be called the right of publicity. Consequently, in Germany the right of publicity is recognised as the right to control the exploitation of the commercial value of someone’s personality or identity traits.
Principal legal sources
What are the principal legal sources for the right of publicity?
The right of personality has been developed by German case law, which justifies the existence of this right based on provisions of:
- the German Constitution;
- the German Civil Code (GCC);
- the German Act on the Protection of Copyright in Works of Art and Photographs 1907, which is partly still in force (ie, the former Copyright Act); and
- the German Criminal Code.
According to established German case law, the principal source for the right is section 823(1) of the GCC in combination with articles 1 and 2 of the Constitution. Section 823(1) of the GCC provides that: ‘a person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable for compensation to the other party for the damage arising from this’. The right of personality is legally recognised as ‘another right’.
Besides this general right of personality, German law recognises a special manifestation of this right. Hence, the right to one’s own picture is governed by section 22 et seq of the former Copyright Act, and the right to one’s own name is regulated in section 12 of the GCC.
Section 201a of the Criminal Code also criminalises the violation of intimate privacy by taking photographs: ‘whosoever unlawfully creates or transmits pictures of another person located in a dwelling or a room especially protected from view and thereby violates their intimate privacy shall be liable to imprisonment of not more than two years or a fine’. The same penalty can be incurred for using these pictures or making them available to a third party.
Another source for the right of personality is article 8(1) of the European Convention on Human Rights, which guarantees everyone a claim with respect to their privacy and their family life, as well as of their habitation and their correspondence. This source serves as a guideline for German jurisprudence.
Enforcement
How is the right enforced? Which courts have jurisdiction?
The general right of personality can be enforced by means of civil and criminal law.
In civil law, the infringed person can apply for a preliminary injunction or file a suit against the infringer. The infringed party can, inter alia, claim damages, reimbursement of unjust enrichment and a permanent injunction. These claims can be enforced by the civil courts at the request of the infringed person.
In criminal law, taking photographs or making them available to third parties can be punishable. This provision can be enforced by public prosecution at the request of the infringed person.
Other relevant rights
Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
Yes. Certain characteristics protected by the general right of personality can be further protected by intellectual property rights, such as trademark law, design law and copyright law (eg, personal characteristics such as name, signature, silhouette and picture can be registered as a trade mark and therefore be protected by trademark law). Furthermore, design law provides protection with regard to images, signatures and names in the form of a logo or any other two-dimensional graphical representation for commercial use. In addition, drawings or photographs of a person can also be protected by copyright law. However, the rights holders of the right of publicity and the copyright, respectively, will not necessarily be identical.
Existence of right
Protectable aspects
What aspects of a person’s identity are protectable under the right of publicity?
Simply, all aspects of a person’s identity are protectable under the right of publicity.
According to consistent German case law, a person’s name is protected by the right of publicity and must not be used for commercial purpose without the consent of the person concerned. Furthermore, signatures are protected from unauthorised commercial use as well as images of a person whose unauthorised commercial use infringes the general right of personality. In a broader sense of interpretation, such protected images also include lookalikes. Therefore, the unauthorised use of a double for advertising purposes constitutes an infringement, provided the relevant public will recognise the person reproduced. Pursuant to consistent case law the right of publicity also covers characteristic voices or linguistic expressions, provided they are outstanding features of well-known personalities.
The protection of characteristic body postures, such as a specific gait or other personal characteristics, is conceivable but remains untested.
Do individuals need to commercialise their identity to have a protectable right of publicity?
No. Individuals do not need to commercialise their identity in order to have a protectable right of publicity. According to the recent case law of the German Federal Supreme Court, a potential commercialisation is no precondition for a protectable right of publicity.
Foreign citizens
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
Yes. Everyone is entitled to the general right of personality, including those of foreign citizens.
Registration requirements
Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?
Neither registration nor public notice is required for the protection of the general right of personality or for the right of publicity. However, registration of some identity traits (eg, name, silhouette) as intellectual property rights is possible.
Protection after death
Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?
The right of privacy is protected after the individual’s death in exceptional cases only.
In contrast, the right of publicity is protected after the individual’s death. The former Copyright Act limits the right to publicity for one’s picture to up to 10 years after death. German case law also provides for the right of publicity to be protected for 10 years. Practically, this means that 10 years after the individual’s death, an individual’s picture or other individual characteristics of a person can be used in advertising without permission of the legal heirs. Claims for pecuniary compensation are not hereditary.
The right of publicity is protected regardless of whether it was exercised while the individual was alive.
Ownership of right
Transferring
Can the right be transferred? In what circumstances?
No. Because the right is related to the person, it cannot be transferred, except in the case of legal succession.
The rights owner can, to a limited extent, dispose of his or her personality right and can consent to the utilisation and exploitation of identity traits by third parties. Therefore, the subject matter and the terms of such a transfer should be precisely defined, because revocation is only possible under very strict conditions. In the case of a wrongful revocation, claims for a breach of contract are possible.
Licensing
Can the right be licensed? In what circumstances?
Yes. Licensing can be used to exploit personality traits.
However, such a licence is not a licence in a technical sense; rather, it grants permission and authorisation, in combination. By this practice, individuals can exclusively authorise a third party to commercially exploit their personality traits. For corresponding agreements, it is important to define the period of time of the licence, the scope of exploitation and the right of revocation.
In contrast to the right of publicity, it is not possible to license the right of privacy.
Infringement
If the right is sold or licensed, who may sue for infringement?
The German Federal Supreme Court holds that the person who is granted permission to use personality traits for merchandising is entitled to enforce a claim for unjust enrichment against anyone who uses these personality traits without the corresponding consent. However, as a general rule, only the rights owner is entitled to sue for infringement of his or her right. The rights owner also has the right to authorise a third party to sue for infringements of his or her right.
Post-mortem rights
If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?
Essentially, the right of personality cannot be disconnected from the rights holder because it is part of the guarantee of human dignity. As such, it is not inheritable and cannot be transferred in its entirety.
Regarding the post-mortem right of personality, however, a distinction must be made between the right of privacy and the right of publicity.
The right of privacy continues after an individual’s death but is not inheritable. This means that the relatives are enabled to claim injunctive reliefs in case of violation of the decedent’s right of privacy, but are not entitled to claims for damages.
In contrast, the right of publicity is regarded as a financial asset whose use and exploitation can be transferred. Consequently, arising claims are transferable and inheritable without restrictions. However, pursuant to consistent case law, such claims are limited in time and expire 10 years after the death of the person concerned.
Recommended actions
Are there any actions that rights owners should take to ensure their rights are fully protected?
There are no concrete measures rights owners can take to ensure that their right is fully protected.
However, owners can protect some aspects of their identity on the basis of intellectual property law and contract law. To this end, individuals can protect their names as trademarks. Such protection is broad and can be extended for an unlimited period.
Similarly, images or signatures can be protected as a design right (see question 4). No specific requirements need to be fulfilled to register design rights. Design rights expire after a maximum of 25 years.
In licence agreements, rights owners need to precisely delimit the use of their personality traits in terms of time and content.
Infringement
Right infringement
What constitutes infringement of the right?
Every unauthorised commercial use of a person’s identity, including that person’s name, voice, image and likeness, constitutes an infringement of the right of publicity.
Excluded formats
Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?
No. There is no format of intellectual property that is expressly excluded from claims based on the right of publicity.
Infringement claim requirements
Is knowledge or intent to violate the right necessary for a finding of infringement?
No. An intent to violate the right is not necessary for a finding of infringement. Actually, most claims (ie, for removal, for payment of a licence fee and for injunctions) are independent of fault. For damage claims, it is sufficient that the infringer acted negligently (ie, without exerting reasonable care).
Liability of media
Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?
Reposting third-party content on social media is problematic in three respects. First, it potentially infringes the right of personality of the initial author, because it is up to him or her to decide whether and how he or she wants to publish the content. Second, the adoption of third-party content might constitute a violation of copyright law. Third, with regard to third-party content or posts, which themselves illegally infringe the general right of personality, the publishing of such content or posts, as well as the republishing, retweeting or other social media propagation, is to be regarded under certain conditions as an aggravation of the already existing infringement so that a liability is to be considered.
In this regard, the way information is propagated further is relevant. It makes a difference whether a link is simply set on a website without the entity setting the link identifying with the linked content or rather whether the content in question is adopted by such an entity and actively propagated, for example, through the person’s own emails or text messages. If the entity setting the link does not make the content its own, a liability would only arise if, for example, the entity setting the link is under an obligation to examine the entire linked content. The existence and extent of such an obligation to examine depend on the individual case and require that all interests concerned are taken into account. In the interests of freedom of opinion and freedom of the press the standards applied to this obligation to examine are not strict if the hyperlinks only facilitate access to sources that are generally accessible. If, on the other hand, the linked contents are provided with further comments so that the entity setting the link makes the contents its own, a liability of the entity setting the link as perpetrator ensues.
Generally, it can be said that whether identification with the content relevant to a potential liability is made depends on whether the entity in question conveys the impression to the reasonable average user that it identifies with the third-party content.
Remedies
Available remedies
What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
There are several remedies available to the owner of the right against the infringer.
The injured party has claims irrespective of fault (ie, an injunction claim, a claim for removal, a claim for surrender of the unjust enrichment and, under certain circumstances, a claim to have the infringing products recalled). Consequently, in the event of an infringement, the rights owner has the right to resort to the courts to stop the infringer. The claims can be enforced through a court action. The injunction claim can also be enforced by way of a preliminary injunction (see question 31). The claim for a surrender of unjust enrichment is meant to compensate the infringed party for losses incurred. In contrast, liability for damages is dependent on fault and provides the infringed party with the possibility of obtaining monetary damages if the right of publicity is infringed.
There are three different ways of calculating damages. First, the amount of damages can be based on actual loss. For legal recovery, the claimant needs to show that it suffered losses from the infringement. Second, the claimant may recover the profits that the infringer obtained through the infringement. Third, the amount can be calculated by licence analogy. The ultimate principle behind this is that the infringer must not be in a better position than they would have been had they entered into a licence agreement with the rights holder. The amount of the licence fee depends on how much the infringing party would have had to pay the rights owner for the commercial use of his or her personality traits. Former advertising contracts of the infringed person, his or her notoriety or the extent of the infringing acts, may serve as a basis for calculating damages.
In order to calculate damages in any of these ways, and then to be able to opt for the highest amount, the infringed party has a claim against the infringer for the disclosure of any relevant information.
In addition, an infringed party may also have a claim for compensation of non-pecuniary damages if they suffer a violation of the right of privacy.
Time limits
Is there a time limit for seeking remedies?
Yes. Seeking remedies is time-limited.
As a general rule, the claim for civil remedies is time-barred three years after the end of the year in which the claim was generated and the infringed party noticed the infringement. The time limit may extend to 10 years. Notwithstanding knowledge or a grossly negligent lack of knowledge, certain claims become statute-barred 10 years after the date upon which they arise.
For preliminary injunctions, the rights owner has to prove urgency. While there is no legally specified time limit, most courts hold that the infringed party must apply for an interim injunction within one month of becoming aware of the infringement.
For claims under criminal law, the infringement has to be reported to the public prosecutor within three months.
Attorneys' fees
Are attorneys’ fees and costs available? In what circumstances?
Yes. Attorneys’ fees and costs are available.
According to a civil law principle, the losing party bears the costs of the proceedings. The winning party also has a claim to reimbursement of its legal costs against the losing party. These costs can include the court fees, their own attorneys’ fees and other necessary expenses, such as travel costs. In cases of a partial defeat, the costs are shared proportionally.
Punitive damages
Are punitive damages available? If so, under what conditions?
Punitive damages are not allowed in Germany.
Claims for damages are calculated on the basis of the reinstatement of the situation of the person that would exist if the infringement had not occurred. Beyond compensatory damages, there are no damages accorded by the courts with the intention of deterring or reforming the infringer.
According to German case law, a foreign verdict for punitive damages will not regularly be enforceable in Germany.
Preliminary relief
Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
Yes. Preliminary relief is available.
A preliminary injunction is a very effective tool to promptly stop infringing actions without the need for costly and time-consuming main court proceedings. In many cases, a preliminary injunction is granted within a few days from filing the request and often without an oral hearing. This cost and time-efficiency, as well as the element of surprise, has led to preliminary injunction proceedings becoming very popular for the enforcement of the right of publicity.
Although sending a warning letter to the respondent is not a legal prerequisite for obtaining or serving a preliminary injunction, sending such a letter prior to serving the injunction is advisable to avoid being burdened with the cost of the proceedings. The warning letter should contain a description of the infringing action, the assertion that the respondent’s action infringes a specific right and a request that the infringer cease and desist from continuing with the infringing action. Further, it should contain the threat of legal proceedings.
To obtain a preliminary injunction, the applicant must convince the court that the prerequisites for a preliminary injunction are met; namely, that the applicant has a substantive claim against the respondent and that the matter is urgent. Most German courts will not grant a preliminary injunction if the applicant did not apply for the injunction within four weeks of the date on which the applicant obtained, for the first time, positive knowledge of all the relevant facts of the infringement.
The courts of the venue where the infringing action occurred are competent. After the court denies an injunction request, some applicants have tried to have the same injunction granted by another court. This approach is not recommended, however, because some courts consider it an abuse of the law and the request is likely to be dismissed.
The court has three possibilities to decide on the request: dismiss it, order an oral hearing before granting it or grant the preliminary injunction without any oral hearing.
If the court grants the preliminary injunction, it is the applicant’s obligation to serve the injunction within one month to the respondent or his or her attorneys (enforcement). Otherwise, the preliminary injunction becomes unenforceable.
Once the preliminary injunction has been served, the injunction is legally valid and the respondent has to stop any acts that could be considered to be in contravention of the prohibitive injunction. If the injunction is granted after an oral hearing, it becomes binding at the time of the publication. Nevertheless, the applicant has to serve it to the respondent’s attorney. If the infringement continues, the court can order the payment of a fine (execution).
The great advantage of filing a motion for a preliminary injunction in Germany is that it is one of the few countries where the winning party has a claim against the losing party for reimbursement of court costs and attorneys’ fees.
Damages measures
What are the measures of damages?
In the case of unauthorised commercial use of personality rights, the person infringed might claim damages optionally calculated in three different ways, that is, at the infringed person’s discretion either the concrete damage might be calculated or an appropriate licence fee might be claimed or the surrender of the infringer’s profits.
Significant case law
What significant judgments have recently been awarded for infringement of the right?
In May 2013, the German Federal Supreme Court held that predictions in Google’s autocomplete function could lead to an infringement of the right of personality and secondary liability of the internet search engine operator.
In this case, the plaintiff made a claim against Google for the removal of the predictions in the autocomplete function that infringe his right of personality.
The court notes that in such a case, the liability of the operator of an internet search engine requires the infringement of reasonable duties of care. However, the operator of an internet search engine is generally only responsible when he or she becomes aware of the unlawful infringement of the right of personality. This means that if the person concerned points out the unlawful infringement of his or her right of personality to the operator of an internet search engine, the internet service provider is under an obligation to prevent such prospective infringements.
In an older ruling, the German Federal Supreme Court held that German courts have jurisdiction over infringements of the right of personality committed through the internet, even if the infringement took place on a foreign website. A precondition is that the content has a clear reference to Germany and that the collision of the conflicting interests could have possibly occurred in Germany.
In one case, the claimant took an action for a permanent injunction against the New York Times newspaper and also against the author of the published article in question, in which the claimant was described as a gold smuggler with connections to organised crime in Russia. The German Federal Supreme Court argued that, for libel statements, the venue of the infringement is the venue in which the press product was distributed. In cases of online infringements, the German courts have to examine whether the infringement can be perceived in Germany.
In the New York Times case, as the newspaper was considered to be an international journal with an extremely high distribution and many online users in Germany, the German courts were declared to be competent.
Litigation
Relevant fora
In what forum are right of publicity infringement proceedings held?
Proceedings for infringements of the right of publicity are held in the courts and are no different from any other normal suit.
Concerning infringements of the right of publicity, because the value in dispute is almost always higher than €5,000, the regional courts are competent in most of the cases. If the value does not exceed €5,000, the local courts are competent.
The competent legal venue is the one where the tortious act occurred or where the defendant resides.
Use of juries
Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?
Disputed issues are decided by professional judges.
In local courts, the dispute is settled by a single judge. In regional courts, a chamber consisting of three judges pronounces the judgment.
Applicable law
How is the choice of applicable law determined?
In the case of a violation of the right of publicity, protection is particularly provided by the law of tort. Therefore, in a case concerning several countries, the applicable law is determined by article 40 of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the German Civil Code). Primarily, at the discretion of the infringed person, applicable law is the law of the state in which the violation was perpetrated or in which the result of the violation occurred. However, exceptionally, applicable law shall be the law of the state of ordinary common residence of the infringed and the infringer or the law of the state that has the closest connection to the case.
Consideration of foreign decisions
To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
German courts do of course consider the opinions of foreign courts that have handed down decisions in similar cases; however, they are not bound by their decisions.
German courts are not even bound to follow the opinion of other German courts, even when the opinions are from higher instance courts; for example, no German court is forced to follow the case law of the German Federal Supreme Court.
Appeals
What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
Regarding a judgment in main or preliminary proceedings, the competent appellate court depends on the court where the proceedings started. Therefore, appeals against first instance decisions by a regional court will be heard by the competent higher regional court. If the local court is the court of first instance, appeals will be heard by the competent regional court.
German law also provides several remedies against a preliminary injunction once it has been granted. In cases of an ex parte decision (without oral hearings), the respondent might consider filing an opposition against the decision to have the court reconsider the decision and appoint an oral hearing. Such an opposition is directed to the revocation of the preliminary injunction by the court. After an opposition has been filed, the court that granted the preliminary injunction will schedule an oral hearing in which both parties are able to bring forward their arguments. The court will then decide on the validity of the preliminary injunction and will either revoke or affirm it. In cases of preliminary injunctions granted after an oral hearing, the respondent can appeal to the competent appeal court.
Average cost and time frame
What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?
With regard to time frames, the preliminary injunction is the fastest remedy. It generally takes between one day and one week for a preliminary injunction without an oral hearing to be granted by the court. With an oral hearing, this time frame could be considerably longer. A main action generally takes between six and 12 months, while appeal proceedings may last from one to two years.
However, all of these time frames depend on the court and on the complexity of the individual case.
Different legal proceedings will involve different levels of costs (costs of the proceedings). These costs comprise both judicial costs (court fees) and extrajudicial costs (ie, attorneys’ fees). Regarding average costs, German legislation provides statutes regulating the amount of fees: the German Act on Court Costs and the German Attorneys’ Remuneration Act. The calculation of these fees is based on the value of the matter in dispute. The value of the matter in dispute depends on the economic interest of the rights holder in having further infringing acts prevented (and also infringements in the past). Attorneys’ fees, according to the Attorneys’ Remuneration Act, are minimum fees, and the law allows autonomous agreements.
In German civil proceedings, the principle prevails that the losing party bears the costs of the proceedings. With respect to the court fees, the claimant has to make an advance payment of the court fee as a prerequisite for the statement of claim to be served upon the defendant. With respect to the attorneys’ fees, each party is obliged to compensate its own attorney.
The winning party is entitled to ask the losing party to reimburse its legal costs. However, attorneys’ fees are only reimbursable up to the statutory amount set out in the Attorneys’ Remuneration Act. This means that even the winning party may have to bear that part of its own costs that exceeds the statutory attorneys’ fees.
For example, in a recent case a German celebrity filed a suit against a cigarette manufacturer for the unauthorised commercial use of his name. The German court fixed the value of the matter in dispute at €200,000.
In such a case, the minimum fees incurred in a first instance main decision comprise court fees (set out in the Act on Court Costs) amounting to €5,238 and attorneys’ fees (set out in the Attorneys’ Remuneration Act) amounting to €5,052.50 as well as the celebrity’s own attorneys’ costs in accordance with a possible autonomous agreement. In addition, costs for taxes and expenses (eg, communication expenses, such as travelling and photocopies) could arise. Additional costs may further arise under certain circumstances (eg, for the hearing of witnesses).
For a preliminary injunction without oral hearings, where the value of the matter in dispute also amounts to €200,000, the court fees would amount to €2,619 and the attorneys’ fees of one party to €2,616.90 (without taxes and expenses). The losing party has to bear all costs here too, including both parties’ attorneys’ fees.
Updates and trends
Updates and trends
Updates and trends
A noteworthy development is the commencement of the new European General Data Protection Regulation (GDPR) on 25 May 2018 and its impact on the former Copyright Act. The Higher Regional Court of Cologne is the first German court to affirm the applicability of the former Copyright Act beside the GDPR. The legal regulations, which have so far deviated from the terms of data protection in favour of media privilege, still apply under the GDPR. The former Copyright Act continues to apply in accordance with article 85 (2) of the GDPR, since it allows a comprehensive weighing of the freedom of opinion and freedom of the press with the right of the person concerned to protection of his or her personal data as a subset of the general right of personality.
Moreover, on 1 October 2017, the Network Enforcement Act came into force in Germany in order to oppose hate speech on the internet. It obliges social networks with two million and more German-registered users to provide methods guaranteeing that any unlawful content is removed or blocked if reported, and threatens to impose fines for non-compliance of up to €50 million.
