General personal rights and protection of one's own works under copyright law

Photo and image rights

1. Right to one's own image

The right to one's own image is regulated in § 22 KUG and states that images may only be distributed or published with the consent of the person depicted.

A distinction must be made between production, reproduction, distribution and making available to the public. Photography itself is therefore not directly covered by the prohibition in Section 22 KUG.

2. General personal rights

However, according to established case law, an unauthorised image could constitute a violation of the general right of personality.

Anyone who takes unauthorised photographs of another person in a home or a room that is specially protected from view and thereby violates their most personal sphere of life is even liable to prosecution (Section 201a StGB). Well, you probably can't call the English Garden a home or a "specially protected area". So we can't get any further here with Section 201a StGB.

So back to the general right of personality. The Federal Constitutional Court recognises the need to protect people from having their appearance recorded in data form. This is especially true today, when high-quality photos of people can be taken with almost any smartphone and distributed around the world in no time at all. Once a photo has been taken, the person concerned has virtually no control over it. The practice of taking photographs should therefore also be based on Sections 22 and 23 KUG. This means that, in accordance with Section 22 KUG, the taking of a photograph is only permissible if the person concerned consents - or if one of the legally standardised exceptions applies (see below).

3. Exceptions to portrait protection

3 a.) Lack of recognisability

The taking of a photograph of a person is unproblematic if the person depicted is not recognisable. This applies in any case if it is not an invasion of the privacy of the person concerned (nude photo). However, it may again be disputed when a person is recognisable. This does not necessarily require the facial features to be visible, but recognisability can also result from other circumstances.

3 b.) (Implied) consent

Of course, image recording is also permitted if the person concerned consents. In addition to express consent in individual cases, tacit, implied consent should also be considered here. However, merely tolerating a recording without resistance does not generally constitute consent. Anyone claiming the existence of consent must prove it.

3 c.) Accessories next to a landscape

• Section 23 (1) no. 2 KUG authorises the distribution - and thus of course also the production - of photographs if the person only appears as an accessory next to a landscape or other location. A person is an accessory if they have no influence on the subject of the image, i.e. if the image of the person largely recedes into the background of the viewer's attention. That should actually solve our case, shouldn't it? But be careful: case law is sometimes quite strict here. For example, a group of cyclists on a road or a group of hikers in front of a mountain panorama were not regarded as mere accessories.

If you apply this standard, our elderly gentleman (with the young lady in his arms) in the English Garden has a good chance of not being regarded as a mere accessory, provided he is recognisable in the picture. But of course this is always a question of judgement and consideration in each individual case.

4. Freedom of panorama

And what is the so-called freedom of panorama all about? Does such a thing even exist?

Yes, the term "freedom of panorama" exists and describes the regulation in Section 59 of the Copyright Act. It states that it is permissible to reproduce, distribute and publicly reproduce works that are permanently located on public paths, streets or squares, including by means of photographs or film.

But be careful: freedom of panorama only ever permits the taking (or distribution of photographs) of works that are permanently located on public paths, streets or squares, i.e. primarily of buildings. Photographing people, on the other hand, cannot be justified under Section 59 UrhG.

5. Conclusion

In the case described at the beginning, the general right of personality of the photographed couple could be affected/infringed if the persons are recognisable and not merely an accessory in the landscape (Section 23 KUG). However, this has nothing to do with "freedom of panorama" (Section 59 UrhG).

Ultimately, however, even if you apply the legal criteria, you are not much smarter than the legally untrained pedestrian on the street. Whether the photo is permitted or not in an individual case depends on a judgement. But at least as lawyers we can name the relevant assessment criteria and don't have to limit ourselves to sweeping judgements such as "impertinence" or "Don't be like that!".

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