Sources of lawRight 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 rightProtectable 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.