In the production of films, the personal rights of many third parties can be affected. This is obvious with respect to the personal rights of the authors and artists with whom the film producer works. Their moral rights and personality rights must be observed. The individual contracts contain corresponding grants of rights in favor of the producer. However, there are also a number of persons not directly involved in the film production whose rights can also be violated. Films are often based on actual events, such as the life and work of famous personalities (so-called biopics or biographical pictures). And even if these people have already died, the film can violate the rights of relatives and heirs. Even if only a special contemporary historical event is described (e.g., a kidnapping that made headlines), the manner in which it is depicted can violate the personal rights of those involved at the time. Furthermore, violations of rights are possible in cases in which archive materials, such as films or photos, are used in documentary films.
If natural persons appear in film recordings, the right to one’s own likeness according to § 22 of the Act on Art and Copyright (KUG) and the general right of personality according to Art. 1 and 2 of the German Constitution (GG) must be observed. The right to one’s name under § 12 of the German Civil Code (BGB) also needs to be considered.
I. Right to one’s own image, § 22 KUG
According to § 22 KUG, images (e.g., photographs and film recordings) may only be distributed or publicly displayed with the consent of the person depicted. The right expires 10 years after the death of the person depicted.
However, according to § 23 KUG, recordings can also be used without the required consent if they are:
1. Portraits from the field of contemporary history:
If it is an event of contemporary historical importance in which there is a public interest in information, recordings of persons can also be used without consent. However, the interest in information must still exist when the film is released. In recent years, case law has evolved significantly in this area. A contemporary historical event can lie, for example, in the person depicted (if they are a well-known politician or artist, for example), as well as in the contemporary historical event itself. Ultimately, the courts always weigh cases individually. They weigh whether the public interest in information or the protection of the person concerned should prevail. For example, recordings which depict other people in private situations may generally be protected. Partners of celebrities (e.g., girlfriend, boyfriend), who are usually not known to the public, may become subject to a legitimate public interest if they willingly present themselves to the public (e.g., joint appearances together with the celebrity partner on the red carpet for photographers).
2. Pictures in which the people are only accessories:
This is the case, for example, if a large number of passers-by are filmed in a scene and no person is particularly singled out.
3. Images of meetings, processions, and similar events in which the persons depicted have participated:
This can be used, for example, when taking pictures of street parades or demonstrations. The prerequisite, however, is that the event is the primary focus and not the individual participants.
4. Portraits that serve a higher interest of art:
This exception is tailored more to artistic parodies or caricatures, not mainstream cinema or TV series.
Important: According to § 23 para. 2 KUG, the four exceptions mentioned above do not apply if there is a legitimate interest of the person depicted. This must always be checked on a case-by-case basis.
II. General right of personality
The general right of personality protects both the economic components (e.g., use of the personal elements for merchandising products) and the non-economic components (honor, human dignity). In the opinion of the Federal Court of Justice, the personality right to the economic components ends 10 years after the death of the person in accordance with § 22 KUG. The protection of the non-economic components has no fixed deadline. However, only severe violations of that right can be asserted 10 years after death.
III. Name right according to § 12 BGB
The mere naming of another person, i.e., the designation of another person with the real name, is generally permitted. Only the assumption of a name is prohibited, e.g., the use of the name of an actually existing person for a fictitious character, unless this is permitted, for example, by artistic freedom.
IV. Data protection according to the GDPR
It is unclear to what extent restrictions could also result from the new data protection directive (GDPR). This is because photos and film recordings are personal data within the meaning of the GDPR. According to the German Supreme Court, the KUG remains applicable along with the GDPR. Article 85 contains an opening clause according to which the Member States of the EU may adopt derogating legal provisions, e.g., in the area of processing of data for journalistic, scientific, artistic, or literary purposes. The KUG is considered to be such a provision for artistic purposes. However, data protection laws must be observed, in particular in the context of employment contracts with artists.
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