Image rights and photo rights - horak Attorneys at Law, Germany
“Image rights” is the product of the basic right on informational self-determination of an image that needs to have the consent of a depicted person. It is legally called “Right of persons to their own likeness”. If we talk about Photo Rights, on the other hand, we follow the rules of copyright law and ancillary copyright of the photographer who takes the photo. In this case, it can be handle as a personal creation because, for example, an extra motive has been chosen, or we could have a post-production to consider; it could have reached every kind of creativity level. However, a photographer has to deal with ancillary copyright issues even by a simple photo-shooting. Besides, not everything can be photographed and subsequently being used for advertising purposes.
This kind of matters could be really differentiating. Please feel free to contact us for further clarifications.
Where is regulated the Image and Photo Right?
In the "Act on the Copyright of Works of the Fine Arts and Photographs" (KUG) of 1907, as a general right of personality, in criminal law in § 202a StGB (penal code) as well as just partly in Data Protection Regulations.
What does it protect?
The “Right of persons to their own likeness” protects photographs or records from undesired access or sharing of the latter. According to § 22 KUG, pictures may only be distributed or publicly displayed only with the consent of the depicted person. In case the depicted person is doubtful, he/she has the right to obtain a remuneration and in this case the consent is considered granted. After the death of a depicted persons, the consent should be passed to the family of the depicted person for a max. of 10 years. If the subject in question happens to have no children or spouse, the parents of the person are the first one to be considered. The manufacture of the portrait is not going to be directly recorded, such as its diffusion and public presentation. In opposition to copyright law, in photo right is only the depicted person to have protective rights.
Consent not required.
Without the consent required pursuant to § 22, § 23 KUG may be exhibited and distributed: portraits of contemporary history; Pictures in which the persons appear only as an accessory part beside a landscape or other places; Pictures of gathering, parades and similar operations in which the persons are represented as a passive participant; Pictures that are not made per order, if the distribution or exhibition has artistic purposes. However, these regulations are valid, only if its distribution and exhibition does not violate the legitimate interest of the depicted person or, if the latter dies, of his family.
Further topics regarding image and photo rights:
- Right of persons to their own likeness
- Photo rights
- Photographs’ rights
- Injury claim
- Performance right
- Protective rights