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4 - German law

Published online by Cambridge University Press:  04 July 2009

Huw Beverley-Smith
Affiliation:
Field Fisher Waterhouse, London
Ansgar Ohly
Affiliation:
Universität Bayreuth, Germany
Agnes Lucas-Schloetter
Affiliation:
Ludwig-Maximilians-Universität Munchen
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Summary

Introduction

Cases concerning the commercial appropriation of personality have been decided by German courts since the early twentieth century. Generally, German judges have shown great sympathy for persons affected by unauthorised advertising or merchandising and have been prepared to grant effective protection, in contrast to the rather ambivalent attitude of the English courts. As early as 1910 the famous aviator, Count Zeppelin, could prevent the unauthorised registration of his name and portrait as a trade mark for tobacco. Subsequently an extensive body of case law has firmly established that persons are entitled to an injunction, to damages or to compensation for unjust enrichment, if their name, portrait or reputation is exploited without their consent.

Most of these judgments are based on the various personality rights recognised by German law. § 12 of the Bürgerliches Gesetzbuch (Civil Code of 1900BGB) prohibits the unauthorised use of another person's name, § 22 of the Kunsturheberrechtsgesetz (Act on Copyright in Works of Visual Arts of 1907KUG) provides that a person's portrait may only be exhibited or disseminated with the depicted person's consent. Along with the moral rights granted by copyright legislation, these rights to one's name and to one's image are known as ‘specific personality rights’ (besondere Persönlichkeitsrechte). Before the 1950s, legal protection of the personality was limited to these specific rights.

Type
Chapter
Information
Privacy, Property and Personality
Civil Law Perspectives on Commercial Appropriation
, pp. 94 - 146
Publisher: Cambridge University Press
Print publication year: 2005

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