Quite at the own picture

the right at the own picture or portrait right is a special development of the general personality right. Each humans may determine in principle even whether at all and in which context pictures are published by it (§ 22 S. 1 art copyright law (KUG)).

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recognizability

with portrait is a photography or a photograph, but each recognizable rendition of a person meant, thus also designs, caricatures, photo assemblies, even the appearance of a double can rank among it.

The consent for publication is however necessary only if the illustrating is individually recognizable. The recognizability can result also from accompanying circumstances. Even the anonymization by eye bars, usual in Presseveröffentlichungen , do not eliminate this recognizability necessarily (three in three/Schulze, UrhG, 2004, S. 1547 § 22 KUG Rdnr. 3). If a person is clearly identifiable by the context, it can resist the publication, even if its face courses are not shown at all.

In addition led the regional court Frankfurt/Main in its judgement of 19. January 2006 (Az.: 2/03 O 468/05) out: “Under portraits in the sense § 22 KUG understands one the representation of a natural person in one for third recognizable way. Mostly the recognizability results from the illustration of the face courses. In addition, it is sufficient, if the illustrating - also its face may have to be recognized hardly or not at all - by characteristics, which itself devoted from the picture and which are own straight to it, is recognizable or its person by the added text or by the connection with earlier publications be recognized can (see. BGH NJW 1979, 2205 - football-gate-wait; Prince/Peter, Medienrecht, Rz. 827). It is not necessary that the illustrating was actually recognized by certain persons. The right at the own picture is already then hurt, if the illustrating has justified cause, it could be identified. Is not necessary that the volatile viewer can recognize the illustrating in the picture, it is more sufficient the recognizability by or less large circle of acquaintances (see. BGH NJW 1979, 2205 - football-gate-wait; v. Strobl Alberg in: Wenzel, the right of the word and pictorial report refunding, 5. Aufl., chapter. 7.Rz. 15). Is crucial the purpose § 22 KUG to protect the personality to become available against its will in shape of the illustration for others. The special rank of the requirement on it that the public respects the self-sphere of the personality and its need after anonymity, requires an inclusion also such drop organizations into the protection of this regulation (see. Peter/prince, a.a.O.) “ <ref>Full text pdf< /ref>


Pictures of public meetings (marching-up, concert, city celebration, demonstration) and if a person appears coincidental on a landscape or a building admission (for example church), without to be identifiable (see accessories (right)), are always permitted against it.

persons of contemporary history

the requirement of a consent is after German right however after § 23 exp. 1 KUG for persons of contemporary history reduced.

In the German iurisdiction thereby a distinction between absolute persons of contemporary history and relative persons of contemporary history was in-patriated.

Absolute person of contemporary history is, who due to its position, acts or achievements it stands out unusual and in such a manner stands therefore in the focus of the public that a special interest of information in the person, as well as in all procedures, which constitute their participation in the public life exists (z. B. Helmut Kohl, Caroline of Hanover, Boris Becker). These persons may do also without their consent photographed and the material may be spread.

Relative persons of contemporary history are humans, who are come into connection with an time-historical event into the view of the public (z. B. the victims of the Gladbecker of hostage drama). Pictures of these persons may be published only in connection with this event without consent.

After the so-called. Also life partners or children rank companion iurisdiction of the BGH of absolute persons of contemporary history among the relative persons of contemporary history. On it may be likewise reported then in connection with a common appearance without consent.

As guide is considered: The more a person in the public interest stands, the more becomes her a person from the range of contemporary history. However the protected zone of the inviolable privacy applies also to these persons. This restriction is already in § 23 exp. 2 KUG: The right to illustrate a person without consent does not extend „to a spreading and a looking position, by which a justified interest of the illustrating is hurt “.

This goods consideration is also in the again seized state security service document law, § to 32a StUG.

in addition, Paparazzi, Caroline and

the EGMR private life and privacy are protected with persons of contemporary history in particular against Paparazzi. After the iurisdiction of the Federal Constitutional Court thereby “the own four walls” as well as ranges of the Privatsphäre are in the public, like e.g. a dinner in a separated corner of a restaurant meant (Caroline of Monaco judgement II).

The European Court of Justice for human rights (EGMR) divided the view of the BVerfG not and referred in its judgement of 25. June 2004 on the fundamental right on protection of the family and private life (article 8 of the European human right convention). Prominent ones do not have to withdraw themselves thereafter to a separated place within the public, in order to enjoy the protection of the Privatsphäre. So had Caroline of Monaco with their complaint against the judgement of the Federal Constitutional Court finally success (see also Caroline judgement).

This judgement will lead possibly to the fact that the concept of the absolute and relative persons of contemporary history is revised. On the part of the press the judgement was strongly criticized - it is feared that now the so-called. “Boulevard” - reporting to be limited could, if the public interest of information had to be to due now in each case to a respectable debate.

On the other hand judgements of the EGMR have only the rank of a simple national law, i.e. the judgement must be able to be measured for his part at the German Basic Law and at the Pressefreiheit.

commercialization

apart from the protection of the Privatsphäre gives it further cases, in which also with persons of contemporary history a consent is necessary for the publication (§ 23 exp. 2 KUG). In addition a predominant justified interest of the concerning must exist. This e.g. is. always with advertisement given: the right at the own picture is commercializable and has net assets. The picture may not be abused to advertising or business purposes. Differently it looks, if a picture is used with advertisement for a medium product, e.g. the title page of a magazine shows a prominent one and as advertisement for the magazine is plakatiert.

Inadmissible, T-Shirts would for example be or collect-ate with the illustrations from prominent ones to to drive out.

The Federal Constitutional Court decided in the year 2000 that the widow of Willy had to bear Brandt posthum its representation on an intending coin (proof).

manipulations of pictures

the Federal Constitutional Court decided in the year 2004 from cause of a karikierenden picture manipulation: The carrier of the personality right is no right of third to be noticed only in such a way as it gladly to see itself would like (vgl.BVerfGE 97, 125 <,148 f. >; 97, 391 <,403>; stRspr), probably however a right that photographically provision width unit an image is not manipulativ disfigured, if it is made accessible third without consent of the illustrating. Indication of source.

providing pictures

original was not bare providing of a photo, without publishing it, in that public forbidden.

§ 201 A StGB

to 30. July 2004 came into force however § 201 A („injury of the maximumpersonal area of life by picture recordings “) penal code (StGB), which would already crime film-when-meet one under certain circumstances for bare providing plans. Afterwards with imprisonment up to one year or with fine one punishes, who

(1) of another person, who is in a dwelling or an area particularly protected from view, manufactures unauthorized picture recordings or transfers and thus their maximumpersonal area of life hurts.

(2) Likewise one punishes, who uses or third makes a picture recording manufactured by an act in accordance with paragraph 1 accessible.

(3) Who authorizes one manufactured picture recording of another person, who is in a dwelling or an area particularly protected from view, makes accessible knowingly unauthorized third and thus their maximumpersonal area of life hurts, with imprisonment up to one year or with fine one punishes.

(4)...

The legislator justified the new facts with the fact that § 33 KUG (approximately §§ the 22, 23 KUG on request under punishment places an offence) it was not sufficient. Because this regulation punishes only the spreading and public exhibition of unauthorized picture recordings, not however the ungefugte production and passing on on third. Besides terminate the new paragraph the unequal treatment between the protection of the privacy of the word (§ 201 StGB) and the protection from unauthorized picture recordings.

on § 201 A StGB already

in the legislative procedure numerous Medienrechtler in vain tried criticism to prevent the law. The regulation „meets the Undercover journalism in the core “, writes the exposure journalist Hans Leyendecker (South German newspaper, 3. September 2004). Because journalists, who filmed with hidden camera, made themselves now possibly punishable, thus for Leyendecker. Besides the factual characteristics „of the maximumpersonal area of life “and „the particularly protected area “are new creations of the legislator, which the iurisdiction must fill out only once. This provides first for juridical insecurity.

requirement for deletion

thereby had to bear so far nobody that it is hurt in its private or privacy (e.g. by a secret Webcam on the toilet, or with the Fotohandy at the FKK beach).

The photographed person can require also then deletion of the picture, if she has cause for the concern, the publication can be imminent (about, if the photographer published already a picture of the person without joining in).

legal basis in Germany

the legal basis for the right at the own picture places concerning the “law copyright at works of the forming arts and the photography “(also: Art copyright law, briefly: KUG) of 09. January 1907. The KUG had been created at that time as penal law, after the press had published a photo of dead realm chancellor Otto von Bismarck, which showed it aufgebahrt in the mortuary. Today are only §§ the 22, 23 and 24 KUG of importance.

In Germany the legal bases for the right at the own picture in the law are to be found concerning copyright at works of the forming arts and the photography (art copyright law, KUG).

KUG § 22 determines:

Portraits may only with consent of the illustrating spread or publicly to look to be placed. The consent applies in the doubt as given, if the illustrating received for it that it could be illustrated, a remuneration. After the death of the illustrating it requires the consent of the members of the illustrating up to the expiration of 10 years. Belonging one in the sense of this law are the survivor spouse or life partner and the children of the illustrating and, if neither a spouse or a life partner nor children are present, parents of the illustrating.

KUG § 23 enumerates exceptions:

(1) Without those after § 22 necessary consent may do spread and to look to be placed:

  1. Portraits from that ranges of contemporary history;
  2. Pictures, on which the persons appear only as accessories beside a landscape or an other location;
  3. Pictures of meetings, elevators and similar procedures, in which the explained persons participated;
  4. Portraits, which are not made on order, if the spreading or looking position serves a higher interest of the art.

(2) The power does not extend however to a spreading and a looking position, by which a justified interest of the illustrating or, if this deceased, its member is hurt.

KUG § 24 concerns the validity of search photos.

civil requirements

the right at the own picture was hurt by an unauthorized publication, or threatens the unauthorized publication of a picture, can the concerning a requirement for omission in accordance with. §§ 12, 862, 1004 exp. 1 S. 2 BGB similar i.V.m. § 823 exp. 2 i.V.m. §§ 22.23 KUG against the respective medium make valid (widening adhesion) around the Erstveröffentlichung of the picture or a repeated publication to prevent.

Besides also a requirement on payment of damages can after § 823 exp. 2 i.V.m. §§ 22.23 KUG exist. Here is apart from substitution of the concrete damage after the so-called license analogy (§ 97 exp. 1 S. To pay 1 UrhG) a fictitious royalty for the use of the picture and a any profit (e.g. to give change because of increase of the edition).

One intervened by the publication serious in the right at the own picture, for example by the casting of naked photos, also a requirement on remuneration can exist in money for an immaterial damage (smart money). This becomes out § 823 exp. 1 BGB i.V.m. Kind. 1 exp. 1, kind. 2 exp. 1 GG derived and is to have a prevention function for the violator apart from the satisfaction function for the victim also.

If the portraits were unauthorized provided, also the publication of the pictorial material can required (§§ 1004 exp. 1 S. 2 BGB similar i.V.m. §§ 823 exp. 1, 249 S. 1 BGB) or a requirement on destruction after §§ 37, 38 KUG to be made valid.

see also

Wikipedia: Picture rights, portrait (right)

vouchers

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