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TitlePrivacy, property and personality: civil law perspectives on commercial appropriation
File Size2.8 MB
Total Pages286
Table of Contents
Table of cases
Table of Statutes
1 Introduction
	The commercial value of aspects of personality
	Commercial and non-commercial interests
	Personality, privacy and intellectual property
	Competing doctrinal bases of protection
		Unfair competition
		Privacy and publicity
		Personality rights
2 Property, personality and unfair competition in England and Wales, Australia and Canada
	Liability based on misrepresentation: the tort of passing off in English and Australian law
		Goodwill and reputation
		Endorsement and misappropriation
		Damage through an injurious association
		Damage through exposure to liability or risk of litigation
		Damage through loss of control
		Damage through loss of a licensing opportunity
		Damage through dilution
	Liability based on misappropriation: the Canadian tort of appropriation of personality
		The protected interest
		Damage to the claimant
		The defendant’s conduct
3 Privacy and personality in the common law systems
	From property to inviolate personality
	Inviolate personality and the accretion of proprietary attributes
	Conceptions of privacy
		The reductionist paradigm
		A holistic conception
		A core conception of privacy
		Privacy as principle
	Reconciling privacy and commercial exploitation: the birth of the right of publicity in the United States
	The scope and limits of the right of publicity
		Assignability and descendibility
		The balance with freedom of expression
	Privacy in English law
		Piecemeal statutory provisions
		Common law protection of privacy
		Personal privacy and defamation
		Personal privacy and breach of confidence
4 German law
		Protection of personality in the Bürgerliches Gesetzbuch (1900)
		The ‘right to one’s image’ (1907)
		The ‘general personality right’ (1954)
		Recent developments: Caroline and Marlene
	Substantive legal protection
		Personality rights I: the right to one’s image (§ 22 KUG)
		Personality rights II: the right to one’s name (§ 12 BGB)
		Personality rights III: the author’s personality right (moral right)
		Personality rights IV: the general personality right
		Unfair competition
		Trade mark law
	Post-mortem protection
	Assignment and licensing
		Historical development
		Consent I: the medical law model
		Consent II: irrevocable consent
		Personality licensing
		Validity requirements
		Destruction, correction
		Publication of a counter-statement
		Unjust enrichment
5 French law
	Framework and history
	Protection of economic interests
		The characteristics of the patrimonial right of exploitation of the personality de lege ferenda
		Objections to the acknowledgement of a patrimonial right of the personality
		The protection of the economic interests without any patrimonial right to personal attributes: acknowledging a new tort of appropriation
	Protection of non-economic interests
		Assessment of the infringement of the personality rights
		Restrictions to Personality rights: defences
	Remedies providing for prevention or cessation of the infringement: injunctions
	Remedies providing for legal redress
		Moral damage
		Economic damage
		Are personality rights really inalienable under French law?
		Transmission by succession
6 Conclusions
	Common features and contrasts
	The three basic models of protection
	Property, intellectual property and personality
	Privacy, freedom of expression and commercial appropriation under the European Convention on Human Rights
	Conclusions: a gradual convergence?
Document Text Contents
Page 143

For more than ten years, the struggle of Princess Caroline of

Hannover, the former Princess of Monaco, against press invasions into

her private sphere has preoccupied both the public and the courts. In the

first case,

which closely resembles the Soraya case,

a magazine had

published a fictitious interview with the princess. She sued for a violation

of her general personality right and claimed damages calculated on

the basis of the profits made by the sale of the edition of the journal

containing the interview. Her action was only partly successful. The

Bundesgerichtshof held that her personality right had been violated and

awarded a solatium. According to the court, the function of this award was

not only compensation, but also prevention. Thus the sum of 30,000 DM

(around 15,000 E) awarded by the Court of Appeal was increased

to 180,000 DM (around 90,000 E). On the other hand, the claim

for disgorgement of the full profits achieved by the publishers through

the sale of the journal edition was rejected. According to the court, an

action for unjust enrichment would only have been successful if the

claimant would have been willing to give her consent to the act com-

plained of. Since this was inconceivable in the present case, the action

failed. Several commentators have criticised this position, arguing that

every profit made bymeans of an intrusion into another person’s personal

sphere should accrue to that person and pointing out that an action

for unjust enrichment would be the more powerful sanction against

press intrusions.

While the fame of the first Caroline of Monaco decision only spread

among legally interested circles, the second case caused discussions not

only among legal commentators, but also in the media. This case con-

cerned an action brought by the Princess against the publication of press

photographs showing her during private activities such as shopping,

cycling or horse-riding, which had been taken in public places, but with-

out the Princess’s consent. The Landgericht (District Court) and the

Oberlandesgericht (Court of Appeal) Hamburg

took the view that the

publication was legitimate since the claimant was in a public place. On

appeal, the Bundesgerichtshof

reversed this judgment with respect

to photographs taken in places such as a garden restaurant that, while

publicly accessible, were secluded from the public eye. However, the

Supreme Court affirmed the Court of Appeal’s judgment to the extent

to which it concerned photographs taken in the open street. The

Bundesverfassungsgericht (Federal Constitutional Court), which was

consequently seized by the Princess, confirmed the judgment of the

BGHZ 128, 1 – Caroline von Monaco I.

See above 102.

See below 146.

OLG Hamburg AfP 1996, 69.

BGHZ 131, 332 – Caroline von Monaco II.

German law 103

Page 144

Bundesgerichtshof in this respect.

The Princess lodged a complaint

with the European Court of Human Rights, which held that Germany

had violated the Princess’s right of privacy, which is guaranteed by Article

8 of the European Convention on Human Rights.

The implications

of this judgment on the protection against the commercial exploitation

of aspects of personality in Europe is analysed in more detail in chapter 6.

The third judgment,

which was accompanied by two decisions in

related cases,

concerned a more typical case of personality merchan-

dising. The daughter of the late actress Marlene Dietrich applied for

an injunction and damages against the producer of a musical about the

life ofMarlene Dietrich, who had not only sold various items of merchan-

dise bearing her name and image but also granted a car manufacturer the

right to produce a special model named ‘Marlene’. In a very detailed and

thorough judgment the Bundesgerichtshof stressed the two aspects of the

personality right which protected not only ideal, but also economic

interests. The image, the name and other aspects of a personality repre-

sented an economic value that was often the result of the particular

person’s achievements. The unauthorised commercial exploitation of

this reputation often affected a person’s material rather than ideal inter-

ests. Personality rights were absolute rights. Since every person was

entitled to decide whether to permit the commercial use of aspects of

personality, every unauthorised use could trigger an action for damages

or unjust enrichment. While this passage of the judgment only restated

the existing authorities, the first Marlene case raised the specific question

whether the economic aspects of personality rights survived after the

death of the person depicted or named. In earlier decisions the courts

had granted post-mortem protection to ideal interests, particularly to the

honour and reputation of deceased persons. Now the Bundesgerichtshof

held that personality rights, as far as they protected economic interests,

were descendible. Thus the heirs of a deceased celebrity inherited the

BVerfGE 101, 361. With respect to another issue, however, the Constitutional Court
reversed the Supreme Court’s judgment. Some photos had also shown the Princess in
public places in the company of her children. While the Supreme Court allowed the
publication of these photographs, the Constitutional Court held that the protection of
family life in Art. 6 GG required protection against the publication of all photographs on
which the children were visible.

Von Hannover v. Germany, Application No. 59320, 24 June 2004. On this decision, see
Grabenwarter, ‘Schutz der Privatsphäre versus Pressefreiheit: Europäische Korrektur
eines deutschen Sonderweges?’, AfP 2004, 309; Heldrich, ‘Persönlichkeitsschutz und
Pressefreiheit nach der Europäischen Menschenrechtskonvention’, NJW 2004, 2634;
Ohly, ‘Harmonisierung des Persönlichkeitsrechts durch den Europäischen Gerichtshof
für Menschenrechte’, GRUR Int. 2004, 902.

BGHZ 143, 214 – Marlene Dietrich.

BGH GRUR 2000, 715 – Der blaue Engel; BGHZ 151, 26 – Marlene Dietrich II.

104 Privacy, Property and Personality

Page 285

Ulmer, E, 112
undue influence, German law, 119
unfair competition

Australia, 13–14
basis of legal protection, 6 –8
Canada, 14
common law jurisdictions, 6 –7, 13–15,

English law, 13–14
European models, 7 –8, 224
French law, 163
German law, 8, 95, 119–21
passing off. See passing off
US law, 13

unilateral promises, 132
unjust enrichment

French law, 165– 6
German law, 102, 103, 140 –2, 143, 146

US law
academic writing, 211
constitutional right of privacy, 54
defamation, 80
dilution doctrine, 32

influence, 161–2
invasion of privacy, 83–4
jurisprudence, 209, 210
legal model, 212, 213
personality as property right, 50–3
privacy concepts, 9–10, 47, 53–64, 207
privacy law, 85, 209
publicity. See right of publicity
torts, 57
unfair competition, 13

voice, French law, 168

Wacks, R., 76
French personality rights, 197, 199
German personality rights, 130–1

Warren, S, 48–50, 58, 63, 67,
149, 211

Younger Committee, 76

Zitelmann, E., 135

Index 245

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