Who could have taken this picture

The right to one's own picture - be careful with photos of people

The right to one's own picture is more relevant than ever, because the number of photos and videos disseminated on the Internet and in social networks has risen rapidly in recent years. But be careful - if you simply share your girlfriend's photo on Facebook or put videos of your own employees on your website, you face warnings and even legal proceedings for violating the right to your own picture.

It has never been so easy to share pictures and recordings with an indefinite number of people in a very short time. The enthusiasm for the new technical possibilities unfortunately makes the sense of the photo rights, especially the rights of those depicted, take a back seat. But if the right to one's own picture is violated, there is a risk of warnings and lawsuits, in which large sums may be demanded. For this reason, both private individuals and companies should urgently inform themselves in advance how they should deal with the rights of the persons depicted.

Immediate help from the lawyer

Do you need legal advice? Call us for a free initial assessment or use our contact form.

Contact us now or 0221/951 563 0

What is the right to one's own image?

The right to one's own image is onespecial expression of the general right of personality. It says that everyone can decide for themselves whether and in what context recordings such as photos or videos are published by them. In contrast to the general right of personality itself, the right is even enshrined in the law, namely in §§ 22-24 of the so-called law "relating to copyright in works of fine arts and photography" - also the Art Copyright Act (KunsturhG or KUG ) called. According to this, portraits may only be distributed or publicly displayed with the consent of the person depicted - unless the exceptions specified in Section 23 KunsturhG apply.

The regulations in §§ 22, 23 and 24 KUG, as well as the other expressions of personal rights, are protected by the norms § 823 (1) of the German Civil Code (BGB) in conjunction with § 1004 BGB, so that private individuals and companies in particular respect the right to images have to.

Do you want to defend yourself against the unjustified publication or distribution of recordings of yourself? Have you possibly received a warning yourself as a photographer or company? Do you need advice on the publication of images and photo rights? We're here to help! Sign in at 0221/951 563 0 (advice nationwide) for a free initial consultation.

Is the KUG still applicable in addition to the GDPR?

With the application of the General Data Protection Regulation (GDPR) since May 25, 2018, the question often arose whether and to what extent the KUG is still applicable in addition to the GDPR. Because due to the primacy of European law, the German regulation could possibly be superseded.

Would you like to find out more about the topic? We have a detailed and constantly updated article on the topicGDPR and photography dedicated.

In summary, the legal situation is currently as follows:

A distinction must be made between taking a photograph and publishing it. Because the right to one's own picture only protects the distribution and publication of portraits of a person, but not against the photographing itself. There is room for data protection law here - but not in every case.

Taking a photo

With regard to the taking of a photo, a differentiation must be made as to who took the photo and for what purpose.

For the following groups of peoplethe GDPR applieswhen it comes to taking a photo:

  • commercial photographers, e.g. of weddings, sporting events, concerts, for job applications and for advertising photographers
  • bloggers and influencers who do not work as a journalist
  • Authorities
  • PR departments in companies when they are not doing journalistic work

For the following groups of peoplethe GDPR does not apply:

  • Private individuals who record in a personal and family circle (household exception, Art. 2 Para. 2 lit. c GDPR or § 1 Para. 1 S. 2 BDSG new version).
  • Media, radio and press as well as persons or companies who are active as journalists and thus fall under the so-called "media privilege".
  • Analog photography that is not scanned and is not managed in a file system (this can also be analog).
  • Recordings of the dead (Recital 27 of the GDPR).

You only have to comply with the old legal situation on the subject of “taking photos”. For this purpose, the case law has developed the following principles: Even taking photos or videos can constitute a violation of personal rights. Because once a photo has been handed over, there is an increased risk that it will also be misused. By creating an undesired image, the person depicted loses control over its evaluation and utilization. However, here, too, the general right of personality does not have absolute priority over the opposing fundamental rights of the photographer. Rather, you have to check in each individual case whose interests have priority in each individual case. For example, photo or video recordings can usually be forbidden if any imaginable publication or distribution would be inadmissible from the outset without the consent of the person photographed. That would not be the case if, as a photographer, for example, one could refer to a higher interest in art. On the other hand, you can always forbid photos from the area of ​​the private sphere or from the highly personal area of ​​life protected in Section 201a of the Criminal Code (StGB) - such as photos from a private apartment.

Publication of photos

The KUG is definitely still applicable for:

  • Private individuals, which are subject to the household exception. Because uploading tooPersonal photos on the Internet, for example on Facebook or Instagram, clearly do not fall under the GDPR. Recital 18 of the GDPR makes this explicitly clear. According to this, Facebook and Instagram must adhere to the GDPR, but not its users.
  • Media, radio and press as well as persons or companies who are active as a journalist and thus fall under the so-called "media privilege" (also the OLG Cologne).
  • Analog photography that is not scanned and is not managed in a file system (this can also be analog).
  • Recordings of the dead (Recital 27 of the GDPR). Here, however, there could be a collision with the deceased's post-mortem right to privacy. The protection of minors must also be observed.

It is controversial whether the KUG can still be used for other forms of photography - especially for commercial photographers and companies. There has not yet been a judicial decision on this. However, at least the Federal Ministry of the Interior writes in a statement that the KUG should remain in the form it was before May 25th. No changes were intended - therefore not even with regard to the applicability of the KUG for the publication of photos. So there is currently no final legal certainty here.

The "portrait" - depicted must be recognizable

A "portrait" within the meaning of § 22 KunsturhG is basically any pictorial representation of a person through which the person depictedrecognizableis. So it depends on whether others can use the image to identify the person. The facial features do not have to be visible for this. Rather, a person can also be recognized on the basis of their posture, figure, eye-catching hairstyle or by a certain pose that is typical for the person. It is also sufficient that only close acquaintances could recognize the person depicted. The higher regional court (OLG) Frankfurt decided in 2005 that a so-called eye bar is not sufficient to exclude the possibility of recognizing a person. Because on the basis of the remaining part of the face, the hairstyle, the body and the description of the circumstances, the person could possibly still be identified by closer acquaintances (judgment of July 26, 2005, Az. 11 U 13/03). The person does not have to be clearly depicted either. Difficult to see, pixelated recordings from a surveillance camera can be sufficient. Even a drawing, mask, caricature, doll or character from a computer game can still show a person in such a way that they are recognizable.

When is there a “dissemination” or “public display”?

The "distribution“A portrait is always present when it is reproduced in physical form on a medium such as magazines, advertising posters, books, etc. Commercial use is not important. It is therefore irrelevant whether the images are distributed for a fee or just given away.

One "public display“Is basically any reproduction of a photo that can be perceived by third parties that are not clearly delimited and are linked to the depicted through personal relationships (cf. § 15 Paragraph 3 Copyright Act, UrhG). Classic examples of this are the publication of a party photo on Facebook, the use of images of employees for the website or the use of photos in the press. It doesn't even have to be actually published, as is the case in the press or the Internet. In fact, it can be enough to show your girlfriend's private photos to a larger group of work colleagues (see Regional Court (LG) Oldenburg, ruling of April 21, 1988, Az. 5 S 1656/87).

Obtain the consent of the person depicted in a legally secure manner

Theprinciplethe right of the picture says:No publication of person recordings without their consent. Consent in this sense is to be understood as the prior consent of the person concerned, with which he / she agrees to the publication and display of his or her portrait.

For the publication of photos of theminor children The following applies: If the child is up to 7 years old, you only have to ask the parents for consent. If the child is older but still under 18 years of age, you still have to ask the parents for consent. In addition, it may be possible that the child or young person must also give their consent (dual responsibility). From what age this is exactly the case cannot be said in general terms, it is a question of the individual case. It is generally assumed that children from the age of 14 have the necessary insight into the scope of their consent. From this point on, the parents are no longer allowed to decide over his head.

Consent can eitherexpress or implied (through coherent behavior). However, caution should be exercised with tacit consent. For this, it must be clear from the behavior of the person concerned that he or she agrees to the dissemination and public display of his portrait. The consent is at least presumed if the person pictured has received payment for it - this is stated in § 22 sentence 2 KUG. Tacit consent to publication can also be clearly accepted if a person concerned gives a television interview, because the person concerned must then be aware of the purpose of the recording.

Example: Even employees who work in a function that absolutely requires such consent as part of the area of ​​responsibility do not have to give separate consent. This is the case, for example, with press officers. After all, it is his job to appear as a representative of the company in front of the media and in image and video contributions.

However, even if permission has been given for publication, the image cannot be used for any kind of distribution and public display. Verbal consent only ever relates to the type of publication for which the recordings were made. For example, if someone takes part in a television survey, the tacit consent does not apply to subsequent use of the picture for advertising purposes. This principle also applies to consent given in writing without any limitation in terms of content.

Therefore, the first question that arises is: How can I obtain such consent in a legally secure manner? In order to avoid uncertainties in provability, you should always ensure that you have given your consentwritten - so you have something in hand in the event of any disputes that arise and can provide appropriate evidence in legal proceedings. If this is not possible, then get verbal consent in the presence of a witness. Because the burden of proof for the existence of the consent is ultimately borne by the person who invokes it.

Example: If the recordings are photos or videos of your own employees, you can get their unlimited consent for commercial use of your photos in your employment contract.

In addition, the consenting party must know what he is consenting to and what purpose the photo is being used for, because if the person concerned has not been correctly informed about the type and scope of the use, the consent may be ineffective. Therefore it makes sense within the scope of the (written) consent to describe specifically and in detail where, for what purpose and for what duration the image is to be used. The concept should be well thought out in advance and prepared with the help of a lawyer.

Make model relases / model contracts legally secure

The declaration of consent for photo shoots, in particular for advertisements, is made by so-called.Model release or model contracts. These then describe in detail the types of use of the photo, in particular advertising and reporting, as well as the duration of the granting of rights, the right to be named and the remuneration.

Here it is advisableNegotiating sufficiently legally secure contracts in advance. On the one hand, this serves to agree on the specific subject matter of the planned photo shoot. The aim here is to reconcile the client's expectations with the model's ideas. It is important to agree on a basic time and thematic framework in which the photo shoot will take place. It is important to clarify whether other models will take part in the shoot and which images are planned. If the client and the model meet in advance, the shoot will run smoothly in most cases. If there are conflicts during the photo shoot, postponing a photo shoot can often result in high follow-up costs.

It is also important to have a regulation on thatUsage and exploitation rights to meet in order to protect the right to the own image of the models and to take into account the interests of the client. It must be regulated how long the photographer or client may use images as well as in which countries and in which way the images may be shown publicly. These regulations help to effectively avoid a later dispute about the exploitation of rights. The different interests of the contractual partners must be sufficiently taken into account.

Clients regularly demand comprehensive usage and exploitation rights. In practice, clients will regularly claim the sole worldwide use and exploitation of the images. However, the models shown may have an interest in being able to use the pictures themselves. It can also be agreed that the material use and recovery area is contractually restricted. So the model can control in which media his own pictures can be published or used. This is important for the model, as such an image can be built up or protected. Or you want to prevent the images from being used in a potentially damaging environment. For example, the publication of pictures of a model in a pornographic environment often carries the risk that other clients would no longer book this model for non-pornographic campaigns.

In addition, clients and models should make arrangements with regard to the client's processing rights, which are common in practice. Even if the digital post-processing of image material takes place in almost every production, the scope of the processing rights should be contractually regulated.

Model contracts with minors are only effective with the legally required consent of the legal representative. A prior agreement is therefore essential in order to guarantee the later use and exploitation of the images. It should be noted that the client should not rely on the verbal assurance of the age of majority of a possibly still underage model. In case of doubt, official identification documents should be submitted and archived as proof of the age verification. Likewise, when working with underage models, clients should, as a rule, only publish age-appropriate pictures.

Immediate help from the lawyer

Do you need legal advice? Call us for a free initial assessment or use our contact form.

Contact us now or 0221/951 563 0

Can I later revoke my already given consent?

Once consent has been given, it cancan generally not be revoked later. However, the case law makes it on a case-by-case basisExceptions, when aimportant reason is present. Ultimately, interests are weighed up on a case-by-case basis, in which the personality rights of the person depicted in the event of a change in living conditions and the exploitation interest of the user are compared.

However, if the person pictured is only not satisfied with the recordings or the interview that took place in front of the camera, although these are within the scope of the production purpose, this is not sufficient. The expiry or termination of an employment contract is also no reason to revoke the consent given to the ex-employer. Because the written consent given without restriction has an effect beyond the employment relationship. That was decided by the Federal Labor Court (BAG) in 2015. Accordingly, employers can continue to use the images and (image) videos in which their employees appear even if the employee in question is no longer working for the company.

In some cases, however, a change in personal attitudes or living conditions is recognized if one has previously consented to nude photos. Then the renewed publication could disproportionately interfere with the personality rights of the person depicted.

If there is an important reason for revoking the consent, the user of the recordings can, however, ask the person depicted toCompensation for expenses or damages to pay for the fact that he can no longer use the recordings.

When can photos be published without the consent of those depicted?

However, the right to one's own picture is restricted in favor of, for example, freedom of expression, freedom of the press and freedom of art. Therefore, the law in § 23 KunsturhG makes exceptions in a final catalog in which the people showndo not consent to the publication have to. Accordingly:

  • Portraits from the field of contemporary history,
  • Pictures in which the people appear only as accessories next to a landscape or other location,
  • Images of meetings, elevators and similar events in which the persons depicted have participated and
  • Portraits that were not made to order, provided that the dissemination or exhibition serves a greater interest in art

be published without the consent of the person pictured. However, these exceptions do not apply if a legitimate interest of the person shown is violated - in the end, a weighing of interests must be decided on a case-by-case basis.

Portraits of contemporary history

The most important exception in the practice of photo reporting is the possibility of publishing portraits from the field of contemporary history without the consent of the person concerned. But when is a portrait of contemporary history available?

In the past, jurisprudence differentiated between “absolute figures in contemporary history” (e.g. important politicians such as the Federal Chancellor) and “relative figures in contemporary history” (those who were only of public interest in connection with a specific event, such as athletes in their discipline). With the consequence that the courts have also considered the publication of images of celebrities in everyday situations as permissible for absolute figures in contemporary history. However, the European Court of Human Rights (ECHR) did not consider this to be permissible in its “Caroline judgment” (dated June 24, 2004, Az. 59320/00). Here too little consideration is given to the protection of the privacy of those affected. However, this could be different for persons in political life who perform official functions.

Since the ECtHR ruling, the BGH has now weighed up individual cases according to a tiered protection concept. The focus is now primarily on the public relevance of the context and no longer just on the person depicted. The courtsWe now weigh up between freedom of expression and freedom of the press or the public's interest in information on the one hand and the personal rights of the person concerned on the other. The greater the information value for the public, the more likely it is to be assigned to the area of ​​contemporary history and may be mapped. The term "contemporary history" includes, for example, image reporting on current or historical events or people from the areas of political, cultural, social and economic life in which the public has an interest in information. The reader's interest in mere entertainment is usually less important than the protection of privacy.

People as accessories

The second exception in Section 23 (1) of the KUG applies to images in which people appear only as accessories next to a landscape or other location. This means the cases in which a street scene or a landscape is captured in pictures and people are also photographed whocoincidentally present are. In addition, it is crucial whether, according to the overall impression of the video, the individual depicted only appears on occasion or whether he is highlighted from the anonymity. So the environment must be in the foreground and grab the viewer's attention, but not the people depicted in the picture.

A person is no longer to be regarded as an accessory if the surroundings are not sufficiently recognizable in the picture. The exception does not include any pictures in which the scenery only creates the framework for a portrait of a person or the person is clearly removed from anonymity and becomes an eye-catcher from the viewer's point of view.

Pictures of meetings, elevators and similar events

It is also allowed to take pictures of meetings, elevators and similar processes. The terms basically include allUnderstand public gatherings to which everyone has access and where the participants have a common purpose. The participants have to want to be noticed by others. These include, for example, demonstrations, sporting events, carnival parades, street festivals and congresses. However, this does not include, for example, the passengers in the subway or a group of sunbathers on a meadow, as they do not carry out these activities together at will, but only randomly. Private events such as weddings, funerals or company parties are generally not covered by the exception. Something else only arises if the will is recognizable here as well, that those affected want to be perceived by others.

However, this is generally allowednot a single person specifically in the foreground stand. So many people have to be seen at a public event that the individual is no longer relevant. It is crucial that the images show the event as a whole and not just individual participants, e.g. by zooming in on a person. Again, that does not mean that the pictures of meetings always have to show them in their full scope. Rather, it is permissible to depict an excerpt from an assembly that is representative of it. Individual participants can exceptionally be shown in the center of attention if they play a special role in the course of the event or are involved in certain events. However, due to the intensive interference with the rights of the person concerned, extreme caution is required here.

Portraits that serve a higher interest in art

With this exception, it is crucial that the publication takes place “for the purpose of art” and not at the request of the person depicted. This is to protect the relationship of trust between the artist and the person who can be portrayed.The art must be in the foreground here and not an economic interest. Portraits in the sense of the regulation are not just drawings, but include artistic representations of all kinds, in particular artistic photographs.

Administration of justice and public safety

In § 24 KunsturhG there is a special regulation for the authorities: For the purposes of the administration of justice and public safety, authorities may reproduce, distribute and publicly display images without the consent of the person entitled, the person depicted or their relatives. The police refer to this, for example, when they give pictures to the press for a public search.