GERMANY

[Muenster; Special to JURIST]¹ The year was 1898. As the body of Prince Otto von Bismarck, the founder of the modern German state, lay on his deathbed, two enterprising practitioners of the then newly improved art of photography made their way into his room and took a snapshot of the corpse. The children of Prince Otto later sued to enjoin publication of the photograph, and to require destruction of the photograph, all copies, and the plate. The court issued the injunction as prayed, reasoning that it would be unjust to allow the photographers to profit from their illegal entry (condictio ob injustam causam).²

In order to provide more solid footing for such cases, the legislature in 1907 enacted the Law Regulating Copyright to Works of Portraiture and Photography.³ According to section 22 of this law, which is still in effect, a person's image or likeness (Bildnis) may not ordinarily be published without the person's consent.⁴

The word "image" in the protective statute has been broadly construed to mean any photographic representation of the person's face or body such as would cause a reasonable person to fear recognition upon publication.⁵ Further, the law has been construed not just to encompass the physical photograph, but also the act of photographing itself,⁶ the thought being that the emotional well being of the individual is threatened by the fear of publication.⁷

Under the statute, the photographer ordinarily bears the burden of proving that the subject of the photograph consented to its publication.⁸ However, in the case of public figures,⁹ consent is dispensed with under the statute. Courts and commentators¹⁰ have recognized two classes of public figures. First are those who are public figures for all purposes (absolute Person der Zeitgeschichte). Such all-purpose public figures are those whose public lives are followed for their own sakes.¹¹ Examples include monarchs, nobility, heads of state, politicians, famous authors, and even infamous villains. Any desire of these persons for anonymity or privacy, at least in their public lives, must ordinarily give way to the public's curiosity, which is somewhat piously termed "the right of the public to be informed."¹² The second group includes those who are public figures for limited purposes (relative Person der Zeitgeschichte). Public figures for limited purposes are those who are catapulted into public consciousness by some historical event, such as a natural catastrophe, crime, or spin of the lottery wheel. These persons' personal likenesses may be plastered ad nauseam on, for example, the covers of magazines, but only in connection with the event, and only as long as the public's curiosity persists.¹³

Until recently, German courts' protection of the private sphere of all-purpose public figures depended on their geographical location. Thus, photographs of the personage in his or her home, including in the backyard, could be published only with his or her consent; on the other hand, those taken in public places, such as concert halls, restaurants, bars, and public streets, were deemed not subject to the consent requirement. It was sometimes said that a public figure lost her privacy at her doorstep.

This "doorstep" line of cases was relied on in a recent case that eventually reached Germany's Federal Constitutional Court. The case concerned Princess Caroline of Monaco. She and a male friend were enjoying a candlelight dinner in a quiet corner of a garden restaurant in provincial France when photographed by paparazzi. The photographs were published in a German tabloid under a headline promising intimate photographs of the princess's romance with "Mr. X." The tabloid's exposé included other photographs, some taken without her knowledge, showing her strolling to a local market, traveling with her children, and on holiday with her family in the country.

Princess Caroline sued for damages under the Kunsturheberrechtsgesetz. The lower court, relying on the "doorstep" defense, denied her claim. The Hamburg Appellate Court affirmed. According to the reasoning of these courts, Princess Caroline was a public figure for all purposes, as were her children. When the family physically crossed the threshold of their home, they entered a public world. A table in a restaurant open to the public could not be considered part of the home, even if it was Princess Caroline's subjective intent to limit her exposure to the staff and guests of the restaurant.

The German Federal Supreme Court (not to be confused with the German Federal Constitutional Court) affirmed in part and reversed in part.¹⁴ The court affirmed the right of the tabloid to publish photographs of Princess Caroline without her consent in those cases in which Princess Caroline had exposed herself and her children to the public at large. The fact that she and her children had not noticed the photographer was irrelevant. But the restaurant was a different matter according to the Federal Supreme Court. Princess Caroline, according to the court, had removed herself from scrutiny by the public at large in a way that must have been obvious to third persons. The table in the dark corner of a quiet garden restaurant was, according to the court, "typically private," even though geographically open to the public and separate from her home. In effect, according to the court's rationale, Princess Caroline had erected a sphere of privacy around herself and her companion by seeking out a quiet corner of an otherwise public place.

The court acknowledged that it was engaged in weighing the relative importance of the information conveyed to the public by publishing the pictures against the intrusion into Princess Caroline's sensibilities and her longing for privacy. The court characterized the public's interests somewhat dismissively as "merely for entertainment purposes," which is a characterization that would probably hold true for all photographs of Princess Caroline. However, the court's remark might also be read as a suggestion that all-purpose public figures be somehow ranked according to their relative entertainment, political, religious, scientific, economic, etc. value.

Alleging that her constitutional right of privacy had been violated by the ruling of the Federal Supreme Court, Princess Caroline petitioned for review to the Federal Constitutional Court, which agreed to hear her case. Seen traditionally, Princess Caroline's action against the paper is an action between two private parties on an issue of private law. Constitutional rights would come into play, if at all, only indirectly.¹⁵

The Federal Constitutional Court reheard the arguments presented before the civil court, but couched them in constitutional terms. In upholding the geographic extension of the zone of privacy beyond one's doorstep, the Federal Constitutional Court wrote that, were Princess Caroline required to stay within the four corners of her residence in order to enjoy her right of privacy, then the law would be denying her the right to develop her personality freely, a right secured by Art. 2 of the German Constitution. However, while agreeing with the Federal Supreme Court that a public figure may have an expectation of privacy beyond the physical confines of her residence, the constitutional judges were not prepared to dismiss the interests of the press as having merely entertainment value, since even entertaining information may be important in the formation of public (political) opinion.

The Federal Constitutional Court took issue with the Federal Supreme Court when it came to photographs of family members of public figures. Without explaining why the children of Princess Caroline were not themselves public figures in their own right, the Constitutional Court announced that the children of Princess Caroline deserve more protection than the Federal Supreme Court had accorded them in the case at hand. The Federal Constitutional Court somewhat talismanically cited Art. 6 of the Constitution, which protects the family and the parent-child relationship. Children of public figures should not lose their privacy unless they are deliberately thrust into the public eye, according to the court. Because the Federal Supreme Court had not adequately addressed this issue, the case was remanded for further consideration.

Notes

¹ © Thomas Lundmark and Richard Chlup, 11 November 2000. Mr. Chlup is a graduate of the University of Bielefeld, a member of the German bar, and a doctoral candidate at the University of Münster. He is presently attending the LL.M. program at New York University. Thomas Lundmark, JURIST'S Germany Correspondent, holds the chair in Anglo-American Law at the University of Münster, where he also acts as faculty advisor to the Foreign Law Program. A description in English of the Foreign Law Program can be found at www.ffa-muenster.de/info/info.htm.

² RGZ 45, Judgment of 28 December 1899, Bismarck, 170, at 173, criticized in O. Marcus, Das Recht am eingenen Bilde, 1904 GRUR 240 and discussed in Jürgen Helle, Besondere Persönlichkeitsrechte im Privatrecht 45 (Tübingen 1991) and Sybille Neumann-Klang, Das Recht am eigenen Bild aus rechtsvergleichender Sicht 10 (Frankfurt am Main 1999).

³ Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie, or "Kunsturheberrechtsgesetz" (KunstUrhG), of 9 January 1907 (RGBl. 1907, p. 7), last amended 2 March 1974 (BGBl. I, p. 469). See generally Jürgens Schulz, Das Recht am eigenen Bild: Eine fallorientierte Einführung in Struktur und aktuelle Probleme des Bildnisschutzes, JuS 1999, at 664.

⁴ Family members must give their consent in the case of a person who has been dead for less than 10 years. KunstUrhG § 22.

⁵ E.g., BGH GRUR 1958, at 408 (Herrenreiter) and BGH GRUR 1979, at 732 (Fußballtor), discussed in Gerstenberg in: Urheberrecht Kommentar § 60/§ 22 KUG at para. 6 (G. Schricker, ed. 1998).

⁶ BGHZ 24, at 200, 298.

⁷ In this way the requirement of "publication" has been read out of the statute.

⁸ Schwerdtner, in: Urheberrecht Kommentar § 12 KUG at para. 170 (G. Schricker, ed. 1998).

⁹ Section 23 (1) cl. 1 of the KunstUrhG literally exempts "images from the sphere of contemporary history" (Bildnesse aus dem Bereich der Zeitgeschichte).

¹⁰ Neumann-Duesberg, Bildberichterstattung über absolute und relative Personen der Zeitgeschichte, JZ 1960, 114 et seq.

¹¹ BGH NJW 1996, at 1128-1129.

¹² See Neumann-Duesberg, Juristen-Jahrbuch 7 (1966/67), at 138, 151.

¹³ See BGH GRUR 1966, at 102-103.

¹⁴ Caroline von Monaco II, BGH NJW 1996, at 1128-1129.

¹⁵ See the discussion of "Drittwirkung" in Lundmark & Hestermeyer, Family Guarantees of Business Loans, JURIST, June 28, 2000.

Thomas Lundmark & Richard Chlup
February 15, 2001

© Thomas Lundmark and Richard Chlup

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