Right of publicity

Right of publicity / Recht am eigenen Bild

June 12, 2023

If a photograph is to be taken and afterwards used (commercially), various rights have to be considered. The person who took the photo is the originator of the photo and can therefore determine how the work is used. Anyone who wants to use the photo needs the corresponding rights of useage from the photographer. But what about the person who is depicted? Did they give their consent to use the photo? Does the person agree that the photo may be used commercially?

In principle, everyone can decide for themselves whether their image is to be used and in what context. This is a special manifestation of the constitutionally protected general right of personality. When it comes to the question of which rights play a role in the creation and use of a photograph, one primarily encounters two relevant sets of rules: The General Data Protection Regulation (DSGVO) and the Art Copyright Act (KUG).

The GDPR is relevant if the photo is a digital recording on which an identifiable person can be recognised. Photos constitute personal data in this sense. In addition, the photo must be used for commercial purposes and the household privilege pursuant to Art. 2 (2) c of the GDPR must not apply. If this is the case, permission to take the photo is a prerequisite. In addition, the person responsible must inform the person to be photographed of the purpose for which the photos are being taken.

The use of a photo is usually assessed according to sections 22, 23 KUG. According to this, images of a person may only be disseminated or publicly displayed after consent has been given. Consent does not have to be given in writing but can also be given by conclusive behaviour.

If the person depicted is a model, he or she will usually have given his or her consent to the production and use of the image within the framework of a model release agreement and will have received corresponding remuneration. However, even without written consent, if the person depicted has received remuneration, the presumption of § 22 S. 2 KUG speaks for the existence of consent.

In certain cases, consent may be waived pursuant to Section 23 (1) KUG. This is the case if the persons depicted are those of contemporary history, persons appear in the pictures only as accessories, persons are only to be seen as part of e.g. gatherings or in the case of portraits whose dissemination serves a higher interest of art.

If consent has not been given or if the photograph has been used for purposes about which it has not been informed in advance, the person depicted is entitled to certain rights. There is a right to cease and desist, to submit a cease-and-desist declaration with a penalty clause and also to information in order to be able to quantify any claims for damages. In cases of particularly serious injury, the person depicted is also entitled to monetary compensation or damages for pain and suffering.