Reconciling the Media's Freedom to Inform with the Personality Rights Of

CEU eTD Collection Hungary 1051 Budapest,Nador utca 9 Central European University PROFESSOR: Kristina Irion, Ph.D AND LAW GLOBAL TELECOMMUNICATIONS COURSE: BROADCASTING LL.M. SHORT THESIS Reconciling the media’s freedom to inform with the personality rights of A comparative study of and German U.S. study the approaches A of comparative by Jozef Cupa celebrities © Central European University March 30, 2009 CEU eTD Collection ilorpy...... 52 Bibliography ...... 50 Conclusion 2. Publicity rights of celebrities or copyright of ...... 24 personality? 1. Privacy rights of celebrities...... 5 Introduction...... 1 2.9 Comparison between the U.S. and German publicity rights...... 48 2.8 German case law regarding publicity rights...... 43 2.7 Legal protection of publicity rights in the ...... 41 German statutory law 2.6 The origin of publicity ...... 40 rights in Germany 2.5 Succession of publicity rights in ...... 39 the United States 2.4 U.S. publicity rights v. Copyright...... 37 2.3 U.S. case law regarding publicity ...... 28 rights 2.2 Legal protection of publicity rights by the U.S...... 27 statutory law 2.1 The origin and scope of publicity rights in the United States...... 25 1.9 Comparison between the U.S. and German approaches to privacy rights...... 23 1.8 German case law regarding the celebrities’ ...... 18 personality rights 1.7 Privacy rights of public figures v. media’s freedom of speech in Germany...... 16 1.6 Freedom of expression under the German 1.5 Privacy ...... 13 rights in Germany 1.4 Personality rights in Germany...... 13 1.3 Privacy rights of public figures v. media’s freedom of speech in the United States...... 8 1.2 Legal protection of privacy rights in ...... 6 the United States 1.1 The origin and scope of privacy rights in ...... 5 the United States Table ofcontents i Basic Law...... 14 CEU eTD Collection case law of case lawof countries. two the Thisprocess. comparative study is by supplemented discussion relevantstatutorythe of and highlighting mainsimilarities and the differences, particularly as thebalancing concerns arecompared, issues regard to these and Germany, with States United the countries, in order to evaluateConflicts between these rights and the media’s right freely to inform the publicwhich are discussed,legal protection of privacy andpublicity aswellrights, as theirvariousis aspects discussed. will prevail and scope, origin, The legal theory. it intheGerman is as known concept, rights personality in variousbroader the of part as rights publicity and privacy celebrities’ the with deals thesis This contexts. The approaches of the two Abstract ii CEU eTD Collection Broadcasting). 1 free exchange of information that citizens need in order to make intelligent decisions and encouragement of open discussion issuesof publicof interest. This also contributes to the for protection the society democratic every in isinevitable of speech freedom media’s The for this focusthesis. of main areas an be the will rights duties, these arise between that conflicts andthe of rights celebrities, status. The media andtheir„duty inform“to general the aswell public, thepersonality as celebrity of maintenance subsequent and attaining the for indispensable absolutely becomes of thus media the attention The media coverage. sufficient without virtually unimaginable in celebration, reaches However, which is 21stcentury the a fame, degree of world-wide andpublishing housesortelevision channels. famous media, beitthe against press, either inLooking back history,mass hasbeen there by oflegal broughta actions so-calledthe rich etc.directors This group of celebrities and is their rights themainfocus of paper.this celebrity term the film singers, with in actors, e.g. showbusiness, a involvement foractive famous their person associate people most Nevertheless, a role. play not does family influential celebrated for their artistic or political activities or for merely belonging toa well-known and is a person Whether become a to celebrity. in order be must celebrated in question person the constitute the elitist group of celebrities. From naturethe of the term itself, once can infer that whatprofessions or which people about consensus is stillnogeneral there However, interchangeably. used often are figure” “public and “personality” „celebrity“, terms The see Labunski,Richard. 1987. New Brunswick, New Jersey: Transaction Publishers, p.134 Libel and the First Amendment (Legal History and Practice in Print and Introduction 1 1 . This . CEU eTD Collection University Hixson, Richard F. 1987. see image, or name ofone’s use commercial the control to right individual an as be described can that 4 St. Paul, Minnesota: West Publishing Co. p. 1195 which the public is not necessarily concerned, see Black, H.C., eds. 1990. unwarranted publicity and the right to live without unwarranted interference by the public in matters with 3 Approach). personality, insofar as he does not infringe the rights of others or offend against the constitutional order or the or order constitutional the against moraloffend codeor ofothers rights the infringe not does he as insofar personality, 2 chapter is supplemented by the case law, that further elaborates on the issue. legal protection, as well as the countervailingmedia’s freedom of expression. Finally, each subdividedinto subchapters, which are discussing the origin and scope of these rights, their the publicity rights, as two important aspects of the broader personality rights. Each chapter is one other andthe rights privacy the discussing one chapters, two into is divided paper The pages. by „hateful willbe in encroachment addressed questions These pivotal press“? followingthe whimsicalshould beprotected? stars? LookingOr shouldat the relevant casepersonality law, oneand interests would of both sides is vitally important fornecessarily their successful cooperation. rights the strike between balance to afair Nevertheless, insharp contrast. areoften celebrities raiserights the question: of andinterests personal the interests media’s the Naturally, in chapters. following the of celebrities be protected against their is a rather broad term, stemming from the German legal legal tradition. from German the term,stemming broad is arather concept rights BasicLaw.Thepersonality America German 5of the States andbyArticle of United the of Constitution the to Amendment First the by both guaranteed therefore is rights rights, including right to privacy includingrights, to right The right to one’s image, or the so-called publicity rights constitutes a special category of personality rights, from free be to person a of right the alone, let be to aright as defined broadly be can privacy to right The German Basic Law in its Article 2.1. states: “Everyone shall have the right to the free development of his development free the to right the have shall “Everyone states: 2.1. Article inits Law Basic German ”, Press, Inc. p. 148 The The Hague, The Netherlands: KluwerLaw International. p. 49-51 see Ruiz, Blanca R. 1997 Should the media‘s freedoms of speech prevail against the claims of Privacy In a Public Society (Human Rights in Conflict). 3 , . Privacy. Telecommunications in (A European and American and right to one’s image. 2 4 These will be discussed in detail discussed be will These Black’s Black’s Law Dictionary 2 Itencompasses different New York: Oxford York: New which rights . CEU eTD Collection Inc. and Forer, Lois G.1987. 8 Approach). University Press and Ruiz, Blanca R. 1997. University Press, Inc. , and Smolla, Rodney A. 1986. 9 7 The Hague, The Netherlands: KluwerLaw International. p. 49 6 5 widely used in both American and German legal theory. Nevertheless, especially in especially Nevertheless, theory. legal German and American both in used widely prominent people from various fields, ranging from business. show politics to This term is includes whichlegal figures, public made the of term used I When addressingcelebrities, is discussed. lifestories celebrities‘ inthe domain of public issues Additonally, strong commercial publicity flavor, arethusjuxtaposed rights copyrightto and trademark. its Emphasizing law. privacy general the from rights publicity the differentiate to tries and Regarding elaborates the mostly rights literature rights, the publicity casesinvoking such on defamation. for a redress as claim libel a to comes it when is essential figures private and redressing the harm by of caused violations law. privacy the The relevant literature focuses mainly andGerman concept used itin legal American realm.the on the general privacythe in privacy to right law, its evolution, constitutional indefining general the Court in Supreme inspired the U.S. concept, rights turn, and torts personality German largest thisOntheother hand,the topic. body the concerning of case-law publicitythe rights privacy,of its andrightlegal the to subcategory concept developed distinct and created the have courts American the instance, For expect. would one than more another one influenced first atcountries two of Although not obvious the intergral sight, have paper.this part is an issue this to approaches andGerman American the between study comparative The see Labunski,Richard. 1987. see Hixson, Richard F. 1987. Privacy in a Private Society (Human Rights in Conflict). New York: Oxford see Solove, Daniel J. 2004. see Ruiz, Blanca R. 1997. see Smolla, Rodney A. 1986 Broadcasting) The The Hague, Netherlands: KluwerLaw International Transaction Publishers. 5 . Thus, the United States has. Thus, Unitedincluding the States supplied world, the Germany, with Privacy inTelecommunications (A European and American Approach). Griswold v.Connecticut. Griswold The DigitalPerson (Technology andPrivacy in the Information Age). . Suing the Press A Chilling Effect Libel and the First Amendment (Legal History and Practice in Print and Privacy inTelecommunications (AEuropean and American . New York: Oxford University Press . New York: W. W. Norton& Company, Inc. Suing thePress. Suing 3 . 6 Duetoits applicability,borrowed this I New York: Oxford University Press, 7 The distinction between public 9 New York 8 CEU eTD Collection in part by their differentlegal systems, added to the topic’s curiosity. this issue,given to dissimilar approaches countries their and between rather two the contrast areas of law, many issue touches the different importantly,however, “star appeal”. More of cases with ranging from kind this afforded to of publicity level high me,to due interestto particular isof topic The constitutional law, time discussing it. to copyrightmore spent is more I press the available, lawregarding asthe case nonetheless, discussed, law, to tortshow business.When themedia,addressing both mediabroadcastwritten and have been law. Finally, mainly hasbeen focus the discussing from rights, publicity the celebrities on of the field the the 4 CEU eTD Collection 12 Netherlands: Kluwer Law International, p. 23 and scope of the right. Although mostly defined as a“right toseclusion” or“right tosecrecy”, privacy didnotdefine content to leavingauthors the clearly, doubtsaboutthe rightserious Louis D. Brandeis served between years 1916-1939 as an Associate Justice at the U.S. Supreme Court 11 Supreme U.S. atthe Justice an Associate as 1916-1939 years between served Brandeis D. Louis (December1890) law, itshouldcommon thus to be status the elevated of a common-law right. such intrusion, this arguedthat righthad already been recognized asworthy of protection at voice. image or works, compelling ofhis be of interest- orgeneral any public eitheraspect his personality it artistic be“right let to alone” by unauthorizedpreventing the publication and reproduction- a absent boundsdecency.”and of of propriety obvious the direction every in was“overstepping authors the to press which,according 10 and Louis Brandeis in the Brandeis Louis and comparison of countries’ twothe approaches tothisissue. ashort iswith concluded prevail. chapter The to aretheones rights whose question the answer to intention an with public, the inform freely to media the of interest countervailing the of light in the shown is privacy to right The Germany. and States United the in celebrities’ personality rights, its origin, scope, legal protection and the related case law, both Ruiz, Blanca R. 1997. Samuel D. Warren and Louis D. Brandeis, „The Right to Privacy“, In this chapter I would like to shed some light on the right to privacy, as part of the Ibid The right to privacy, was firstmentioned privacy, rightwas to The in 1890 by publishedan article Warren Samuel 1.1 Theorigin andscope ofprivacy rights inthe United States Privacy in Telecommunications (A European and American Approach). “If you can’t“If standtheheat, get outof thekitchen” 11 Warren and Brandeis, seeking a legal basis for protection the against 1. Privacy rights of celebrities Harvard Law Review. Law Harvard 10 Harry S.Truman The authors describedas The individual’s the authors an right 5 It was written It Harvard Law Review in reaction to the intrusive the to in reaction , vol.4 12 However, the However, The Hague, The CEU eTD Collection Cable Communications Policy Act, Video Privacy ProtectionAct etc. 18 University Press, p. 77 17 16 Netherlands: Kluwer Law International, p. 27-28 15 rights scattered throughout the Constitution, mostly in the first 10 Amendments known as“Bill of Rights” As there is no specific constitutional right to privacy the Court created it as a “penumbra” the from right to variousmarital privacy. TheCourt violating also as found that the ofcontraceptives use the right to privacy criminalizing is a law general constitutional Connecticut the down struck right. Court Supreme The 14 access to self, personal autonomy, anonymity have all been defined as part of the right to privacy 13 when, how, and to what extent information about them is communicated toothers” is communicated them about information what extent and to how, when, “privacy that is individuals, theclaim of institutions groups, or todetermine themselves for from the right to privacy. separated right, likeness”, apublicity which is rather “right nameor to one’s recognizing a started when they ensuingconfusion the addedalsoto actfreely”. courts American to “right “autonomy”. privacy with makeprivacy,definedto rightas identifying the right the one’s thus decisions, own this to right which constitutional recognized Court, Supreme ageneral instance, U.S. For the privacy. to right term of the definition clear the on beenageneral consensus hasnot there these these fourcases intodifferent torts “intrusion seclusion,misappropriation,upon false light categorized cases, of privacy hundreds reviewing after Prosser, William article, andBrandeis’ Warren the after years seventy About rights. privacy of protection the to comes it when role it. with connected rights andcontractual legal individual’s aswell ownership nature the as commercial its emphasizing in information”, right “property be a to information, over control itis worthmentioning that many scholars considerprivacy, especially when defined as a There are many acts passed on the federal law that protect different privacy right, e.g. right, privacy different protect that law federal on the passed acts many are There Solove, Daniel J. 2004. Westin, Alan 1967. Ruiz, Blanca R. 1997. Throughout the years, terms as personhood, solitude, secrecy, control overinformation, intimacy, limited Rather than the statutory law regulating privacy regulating law statutory the than Rather Griswold Connecticut v. 1.2 Legal protection ofprivacyrights inthe United States Privacy and Freedom Privacy in Telecommunications (A European and American Approach). The Digital Person (Technology and Privacy in the Information Age) , 381 U.S.479 (1965) 15 14 However, as concerns the free flow of information, some assume The “right to be free from intrusion” was thus mixed with the with mixed thus was intrusion” from free be to “right The . New York: Atheneum 6 18 , the common law plays the principal the plays law common , the Privacy Act of 1974, . New York The Hague, The 16 Finally, 17 13 CEU eTD Collection 23 22 21 University Press, p. 58 20 19 are recognized by most states either through common or statutory law. statutory eitheror common through states most by are recognized safeguarding the privacy by allowing tosueothersfor “privacy people invasion”. These rights facts” of andprivate publication the slander, and libel to similar very is tort This light. false in a public the before them places that publicity offensive against reputation celebrities’ the protect to helpful be might light false of tort the Similarly, information. personal their of disclosure public against fight to celebrities the allows It press”. the of “excesses the address to mean suitable most be the to seems Publication of private facts, especially the sensitive ones, without alegitimate public concern, invoking the tworemaining false torts: lightand publication of facts.private are mostcelebrities Therefore, chapter. next in the discussed are likelywhich rights, publicity the rights, of to seekanother category belongs – more properly to promote sell the product a certain to of instance protection intrusion upon againstof tort the so alone, completely left be to want not infringementdo celebrities most mentioned, As privacy. of their have higher amuch likelihood to intoturn rights litigation minorthan questionable or invasions of by materials collectsensational the to inorder home aperson’s enter members press of the where or media, by issue. Therefore displayed casessuchas nudity anincentive publicly would to where create individuals. to done harms isredressing lawof capable thetort useful as mightprove thesestake, torts is at celebrities Ibid Ibid Solove, Daniel J. 2004. Prosser, William L. 1960. „Privacy“. L. 1960. William Prosser, Ibid defamation torts. , p.59-60 22 seclusion is rarely invoked. Also the misappropriation of name or likeness - for 23 The Digital Person (Technology and Privacy in the Information Age) 21 However, the damages to privacy must be substantial so they so mustbesubstantial toprivacy thedamages However, California Law Review 19 . These torts serve as the common law grounds for grounds law common the as serve torts These . 7 , vol. 48 20 When the privacy of privacy the When . New York CEU eTD Collection Edition. New York: AspenPublishers, p.1167 see Stone G.R, Seidman L.M., Sunstein C.R., Tushnet M.V., Karlan P.S.. 2005. 26 1998 and 2003. see between Association ofthe president the as served even actor The self-defence. and rights ownership 25 24 knowledge thatis malice- with that madewas actual statement with unless the he that proves conduct it was falsepublic official or with recklessby Amendment, Firstthe Courtestablished the disregard officials collision the with and of privacy rights press’freedom their of the guaranteed speech of whether it was false or not.” In Actual and public officialsmalice freedom of media’s speech. figuresandthe ofsuch between public privacy the rights law therelation has shaped that Therefore, I would like to address the most important issues, illustrated criticism. strong and defamation by media of the victims relevant become to likely case Anjelina Jolie’s Heston’s Charlton foundation, involvementown her through charity in HIV/AIDS involvement with her and Taylor Elizabeth examples: few a give the to UN Refugee Just Agency. associations. controversial of members even are celebrities many mention, to Not issues. Logically, such becauseininvolvement of their controversies public vocal advocacy and their of public celebrities are publicor service,still fall, alongwith category officials intopublic the figures, of public governmental of form in any involved not are if they even celebrities, Nevertheless, chapter. next in the discussed is which rights, publicity their of violation for sue mostly celebrities CharltonHeston (1925-2008), famous American actor, mostly knownfrom the movie New York Times v. Sullivan New York Times v. Sullivan faced strong criticism for his involvement with the 1.3 Privacy rights of public figures v. media’s freedom of speech in the United States The case law addressing specifically the celebrities’ privacy rights is still quite scarce. The is scarce. still quite rights privacy celebrities’ the specifically caselawaddressing The New York Times v.Sullivan YorkTimes New may not “recover damages for a defamatory falsehood relating to his official his to relating falsehood a defamatory for damages “recover not may http://www.imdb.com/name/nm0000032/bio 376U.S. 254(1964) 376U.S. 254(1964) 25 , arguably important case singlethe most regarding public 24 leadership of the National Rifle Association or National Rifle Association, 8 “ actual malice test”. Under this test, the Under this test, malice test”. actual promoting the firearm the promoting Constitutional Law Ben-Hur . 5th 26 CEU eTD Collection The case dealt with defamation of a private individual, Chicago attorney, Elmer Gertz. The Supreme Court Supreme The Gertz. Elmer attorney, Chicago individual, of aprivate defamation with dealt case The 33 32 Broadcasting) 31 30 29 28 27 stated inthe The Court isstory. publisher another of recklessness the Proving the freedoms of expression are to have the “breathing space” that they need to survive.” decided statementis that an“erroneous infree inevitable andmust debate, it if be protected inSupreme rulingthe favorof theU.S. Moreover, Court, Thompson Inc. the in majority the for writing Powell, Lewis Justice definition. clear isstill “publicthere no todefine manyfigure”, term attempts the been therehave Although figures Public officials. forlaidinvolvinglibelworld. cases Nonetheless, the case the groundwork public of the the across known widely celebrities necessarily not are These etc. officials, state judges, falsity”. (probable) of withawareness of acts a “high degree for truth unlessthepublisher reckless disregard falsehood. aknown disregarded knewrecklessly media unlessthe or is itthat protected proven the rightsof expense the at speech of free Amendment public First media’s the strengthened substantially officials.Court Media mistakes the space, breathing media’s the recognizing and test malice actual the establishing By and errors are tolerated, evidenceto produce toprove actual malice even constitutionallyis way apermitted statement defamatory publishing apurportedly leading to editorial process Labunski, Richard 1987. Ibid Gertz v. Robert Welch Ibid Herbert v.Lando St.Amant v. Thompson Ibid 33 , , provided probably the most, provided cited probably often definition: “thoseclassed figures the have aspublic p.1166 32 31 28 Although , “failure to investigate or otherwise seek corroboration prior to publication is not ispublication to prior otherwise seekcorroboration or investigate , “failure to New Brunswick, New Jersey: Transaction Publishers, p. 76-77 441 U.S. 153 (1979) 29 , Inc. 418 U.S.323 (1974) 390 U.S. 727 (1968) Nevertheless, inquiries Nevertheless, into thoughts, andopinions as conclusions part of Sullivan Libel and The First Amendment (Legal History and Practice in Print and dealt with public officials, the term refers to local politicians, local to refers term the officials, public with dealt 30 9 Times and its protected freeand its protected speech, Gertz v. Robert Welch, v.Robert Gertz St. Amant 27 v. CEU eTD Collection Edition. New York: AspenPublishers, p.1172-1173 see. Stone G.R, Seidman L.M., Sunstein C.R., Tushnet M.V., Karlan P.S. 2005. 39 36 All the mentioned stars, Elizabeth Taylor, CharltonHeston and Anjelina Jolie fall under this category. 38 37 Edition. New York: AspenPublishers, p.1174-1176 they are involved in. see Smolla, Rodney A. 1986. 35 see Smolla, Rodney A. 1986. them only as regards the issue they have invited attention about. ofrecovery“ deserving more 34 also are they figures; public and officials public the defamationof a private individual is involved, since „they are not only more vulnerable to injury than came to the conclusion, that the actual malice test adopted in adopted test malice actual the that conclusion, the to came public officials applying the same standards in their treatment against the media’s freedom media’sfreedom in against the public thetheirto treatment same officialsapplying standards notoriety or figureandfor hebecomes purposes all that a public inall contexts.” involved”issues resolution of the forefrontinfluence themselvesthrust the of particular in to to controversies the public order large”. society at in to concern areas of “shapeevents their fame thanks to or, question,” public important of resolution in the involved intimately “are office apublic holding not individuals areblurred”. sectors Even and private distinctions between this the governmental country, at directed in public TheCourt “Increasingly with figures. observed: defamatory statements Walker in Court Supreme the 1967, In andpublic Actual malice figures domain.” in sport any other or sphere, thesocial arts, in the economy, politics, life,whether public office an/or using public resources a promulgated similar figures: “Publicpublic definition of holding figures are public persons and, more broadly speaking, Europe Council of the in 1997, Diana Princess of death the to incomparison, reaction For all those who play a role ineither case such persons assume special in prominence resolutionthe of public questions.” see Stone G.R, Seidman L.M., Sunstein C.R., Tushnet M.V., Karlan P.S. 2005. Resolution 1165 (1998) of Parliamentarythe Assembly of the Council of onEurope the to right privacy these are so-called „universal public figures”. The actual malice test applies to them no matter what issue what matter no them to applies test malice actual The figures”. public „universal so-called are these people falling under this category are so-called „limited public figures“. The actual malice test applies to Curtis Publishing Co. v. Butts Curtis Publishing Co. v. Butts 39 Due to theirunited Courtthe status, similar thecategories of figures andpublic 38 37 went even further and applied the applied and further even went and and Suing thePress Associated Press v. Walker Press v. Associated Associated Press v. Walker Press v. Associated 34 Curtis PublishingCo. v.Butts . Publicfigureis“achieves also who suchpervasivefame . New York: Oxford University Press, p. 59 Suing the Press 10 New York Times New York Times v. Sullivan 388U.S. 130 (1967) 388U.S. 130 (1967) . New York: Oxford University Press, p. 59 actual malice test in dealing test malice actual Constitutional Law Constitutional Law and Associated Press v. Press Associated does not apply if 35 Finally,“in . 5th . 5th 36 CEU eTD Collection Broadcasting) 46 45 Broadcasting) see see Labunski, Richard. 1987.deleted. been Libel had of Goldwater infavor statements that and questionnaires, psychiatrist president”. Ginzburg later admitted that the article contained false information, including fictional 44 denied 1970 in Court Supreme the Although test. malice actual the fulfilled clearly publisher the statements, defamatory harm”.publishing By much resultingknowingly “was very possible the aware of article wasdeliberately beforepublished the1964Election,defendant, the publisher Ginzburg ruled,As the court the protection. itoffera constitutional refused falsehood”, to a “calculated labeling the 43 Edition. New York: AspenPublishers, p.1179-1180 42 moreme than to to seem information andmisleading inaccurate even the publication of dissenting Court’s the denial,“the that claimed grave dangerof penalizingprohibiting or the Interestingly,the in malice. made with actual thecan prove falsehood he unless emotional must such distress, endure heldhe Court figure as a the that “emotional public distress”, claimed inflicted article the Falwell Although Amendment. First the under protected constitutionally found was mother, his rendezvous with anincestuous Falwell, about interview of Jerry The standard.parody 41 40 or First Amendment policy” Amendment First or logic, law, in basis no “has groups both of treatment different the Warren, Earl Justice Chief publishif falsehoods act with even media actual malice. they the not did prove According to see Labunski,Richard. 1987. Barry M. Goldwater(1909-1998), along-term Republicansenator and the party’s 1964presidential nominee, In his articles, publisher Ralph Ginzburg stated, that Goldwater was “mentally unbalanced and unfit for Hustler Magazine v.Falwell Ibid Goldwater v. Ginzburg Hustler Magazine v.Falwell see Stone G.R, Seidman L.M., Sunstein C.R., Tushnet M.V., Karlan P.S. 2005. 42 Fact’s magazine New Brunswick, New Jersey: Transaction Publishers, p. 123 New Brunswick, New Jersey: Transaction Publishers, p. 124 , 414 F., 414 2d234 (1969) Goldwater , 485 U.S. 46 (1988) , 485 U.S. 46 (1988) Libel andThe First Amendment (Legal History and Practice in Print and ’s article 40 The and The First Amendment (Legal History andPractice in Print and v. Ginzburg v. Falwell case 44 about the presidential candidate Barry Goldwater Barry candidate presidential the about 11 43 41 the SecondCircuitAppeals, of by Court certiorari was decided applying the same logic and to hear the case, Justice Black, Justice hear case, the to 46 Constitutional Law . 5th 45 , as CEU eTD Collection 49 the eyes of the public, as it did not mirror the family’s real experiences. Hill’s family whichwas held hostage in 1952. The family claimed that the play placed them infalse light in The Life magazine ran astory about the play in using the media for voicing their dissatisfaction with such defamation or criticism. but media, against actions legal in bringing lie to seem not does criticism heavy or defamation theirmediamost protect forcelebrities privacy supposed effectiveto againstthe rights way freedom speech. The thus of media’s crippling the have effect, figures could arealchilling win.actual maliceburden, inorder to of such However, absent rights privacy a the public media and their free the itWhen toareal litigation, comes speech freedom speech. of andthe media’s privacy rights typically prevail. celebrities’ between conflict the illustrate to well suit mentioned cases the conclude, To Celebrities do have a harsh time provinggastronomical habits is irrelevant, unless itis qualifiable as a matter of public interest. the governmentalpolitical whether or involvementor they run astory theirabout cultural or celebrities’ about reporting are media the whether that inferred be might it Therefore, any matter “the public in,” isinterested regardless of its content. any shouldmalicematter test of apply to a story Thisinterest. concerning public as is defined 48 47 questions”. governmental or political of resolution the enhance might that utterances to limited the decision in decision the mention to isit necessary interest, public invoked oftmedia’s the to itcomes Finally, when interest thepublic and Actual malice today.” Court the before one the outweigh any gain, social,might personal or result that from libel permitting awards such as see Smolla, Rodney A. 1986. Time, Inc. v Hill Ginzburg v. Goldwater 48 The Court sided with Time, Inc. v. Hill , 385 U.S. 374 (1967) , 396U.S. 1049 (1970) Suing the Press the Suing 47 , in which the Court held that “constitutional protection is not is protection “constitutional that held Court the in which , Life . New York: Oxford University Press, p. 55-56 Magazine’s The Desperate Hours 12 assertion that the New York Times’ actual Times’ York New the that assertion , whichwas inspired by the story of 49 50 CEU eTD Collection the Constitution. of 10 Article under correspondence of privacy to right the is right fundamental a specific of such example The 53 52 The wasright thusoriginally recognized asfundamental to right negative freedom. Netherlands: Kluwer Law International, p. 48-50 51 Law. This privacy encompasses “the right to seclusion and secrecy” as well as “the right to seclusion right as“the well andsecrecy” to as right “the Law. This encompasses privacy personality is notprotected by other, more specific fundamental rights. the of aspect or freedom particular ifthe only itapplies means that which nature, “subsidiary” general object permeates each of the particular rights. particular the eachof permeates object general its and assuchareundivided rights personality the stressed, BVerfG)has repeatedly or Court foundin Article 1(1).However, astheBundesverfassungsgericht (Federal Constitutional dignity” human to “right the with along invoked often are rights personality these Moreover, privacy. to right the and word spoken and image one’s to right the honor, personal to right for example, right: into individual’saseparate the of basically personality aspect an every turning of potential the with term, broad rather a is right personality the mentioned, As freedom is of in nature. law. Theright or thus a negative interference of authorities,exceptingpublic of justifiablethe course limits imposedby the the without freely act to right bea general to was meant right the Originally, code”. orthemoral order infringe of constitutional oroffend the others against not rights he the does as insofar personality, his of development free the to right the have shall “Everyone 2.1: Art. falls andrather in broad but rather general outlined the “personality of concept rights”, under Ruiz, Blanca R. 1997 Privacy rights form part of the general personality rights under Article 2.1 of Basic the of Article under 2.1 rights personality general partof the form rights Privacy Ibid Ibid, The right toprivacy is not specifically mentioned in the German Basic Law (Constitution), , p. 55 p. 51 . Privacy. in Telecommunications (A European and American Approach). 1.5 Privacy rights in Germany 1.4 Personality rights inGermany 13 51 52 However, the right is of is of a rather right the However, 53 The Hague, The CEU eTD Collection the standards governing the basic rights and violation of the applicant’s free expression rights under Article 5. Article under rights expression free see Kommers, Donald applicant’s of the .P. 1997. violation and rights basic the governing standards the speech. Court The finally ruled in favour,his on the ground of Superior the Court’s incorrect applicationof film. Lüth subsequently turned to the Federal Constitutional Court stating violationof his basic right to free The case dealt with aboycott initiated by Hamburg‘ directorof information Erich Lüth against the film 55 54 films such as possible the constant intellectual debate and the contest of opinions that is itslife”. elixir that of andopinions contestof the intellectual debate constant the possible fundamental for absolutely because aliberal-democratic it constitutional order makes alone freely. rights one’s andact exercise to autonomy personal the with connected closely determination, self- informational to aright essentially becomes right The himself. about information away extentanddecidewhat individual gives -the - to for instance, to when asaright described, determination” within one’s seclusion and secrecy. Suchself-determination mightbe control one’s seclusion and secrecy”, and in line with the proclaimed “right to self- in the famous alsoemphasized was expression of freedom of the importance The broadcasting. of freedom and press the of freedom the importantly, most and information obtain to right ideas, one’s The right of free expression encompasses Thereshall guaranteed. benocensorship”. thus various aspects Freedom of press the freedom and of reportingaudio-visual through of media shall be this right: right to express visually and to obtain information from generally accessible sources without hindrance. “Everybody has the right freely expressto and disseminate their opinions orally,in writing or byArticle of BasicLaw: 5 (1) the is guaranteed of expression Freedom heading broad underthe linked together personality right. Lüth case Ibid, Immortal Lovers, p.52-53 54 Privacy, informational self-determination and the autonomy to act freely freely are thus act to and autonomy the self-determination informational Privacy, , BverfGE 7,198 (1958) Jud Süss. Lüth directed by VeitHarlan, who gained notoriety directingfor Nazi-propraganda 1.6 Freedom of expression under the German The Hamburg Superior Court enjoined Lüth from calling publicly for a boycott of the of boycott a for publicly calling from Lüth enjoined Court Superior Hamburg The case 55 , The Constitutional Jurisprudence oftheFederal Republic of Germany in which the BVerfG stated that freedom of expression “is expression freedom of that stated BVerfG the in which 14 Basic Law , 2nd 56 CEU eTD Collection Aldershot, Brookfield, USA: Ashgate and Dartmouth Publishing Co. p. 211 62 61 60 59 58 Aldershot, Brookfield, USA: Ashgate and Dartmouth Publishing Co., p. 209 57 56 edition. Durham and London: Duke University Press,p. 361-369 news of andopinions.” distribution the information to of from acquisition press,the the institutional “the independenceopinion freely”.guarantees Such of a right press through the one’s express being anddistribute of reducedtotheguarantee notto able of press“is the investigative journalism. different treatmentaffording standard, adouble applies BVerfG “tabloid Thus the speech”. protections afforded to different kind of speeches: the and speech” “serious afforded protections the between line a drew thus BVerfG The the tabloid needs moreof a less or group broad superficialof pressreaders for entertainment” is inferior to andthe to contribute to the formation of seriousthe public opinion, orwhether it only satisfies the public interest seriously and soberly,as sotosatisfy informational needsthe publicthe of may be taken into consideration whether the press,in the specific case, debates a case of “when balancing freedom of the press against other constitutionally protected interests, it “respectable”the press”. to limited not is press the of “freedom BVerfG, the to According well. as journalism investigative and tabloids covers it topic, the of regardless guaranteed is press the of Freedom broadcasting. freedom the of as regards a similar also conclusion to BVerfG came information. obtain to freedom the expression, freedom of of aspect by isanother information protected the read freely and toobtain right readers’ hand,the other publishers to freely expressaspect an press, the of Freedom and disseminate freely their opinions through the press. On the Michalowski, S. And Woods, L. 1999. see see see Michalowski, S. And Woods, L. 1999. Ibid Lüth case Seizure of Film Material Case Soraya Decision, Exclusion from the CivilService decision , BverfGE 7,198 (1958) BverfGE269 34, (1973) 62 , BverfGE 77,65(1987) German Constitutional Law (The protection of civil liberties). German Constitutional Law (The protection of civil libertie 60 Yet, the Court said: of the freedom of expression, protects journalists and , BVerfGE 10, 118(1959) 15 57 Nevertheless, freedom Nevertheless, 61 59 s). 58 The CEU eTD Collection 68 Aldershot, Brookfield, USA: Ashgate and Dartmouth Publishing Co. p. 203 67 66 judgments. value contain may offacts also asstatement categories, these between clearly distinguish to difficult remains It incorrect. proven when protection constitutional lose fact their of whilestatements regardless of their correctness, areprotected effects- 65 opinion. certain linkedprotection,a totheformation contribute are provided they a certain to of or opinion, convince”.opinions andto of formation the toinfluence environment, the on effect intellectual have“an since they UnderArticle enjoy 5,opinions constitutional stronger offacts,protection than statements canbeestablished. whosecorrectness facts, of statements to the as opposed established, 64 63 reality”. and is expressed what between persons”. Expression of fact, on the other hand are“characterized by an objective relationship certain topic of the person areMurderers Soldiers experiencing them. They contain his judgment on facts, ideas or remain protected whether they are desirable or undesirable, polemic or offensive. or polemic undesirable, or whetherare desirable they remain protected Opinions possessfacts. of statements and opinions of expression the between made is distinction further A universal constitutional protection regardless of content or form. They right to personal honor”. Regardingto protection honor(underright of their celebrities, the personal of in laws,legislativegeneral aimedattheprotection and provisions young the of persons and tolimitationsbroadcasting]freedom are subject inthe embodied pressand the of Michalowski, S. And Woods, L. 1999. Article 5(2) states that “these rights Ibid Election Campaign Decision, Holocaust denial case Soldiers are murderers case Ibid, , p. 205 p.200-201 1.7 Privacy rights ofpublic figures v.media’sfreedom of speech inGermany 67 Needlesstosay, given their subjective –andopinions nature, theirintended , BVerfGE 90,241 (1994) , BVerfGE 93, 266(1995) case BverfGE 61, 1(1982) 66 64 Nevertheless, statements of facts do enjoy enjoy constitutional do facts of statements Nevertheless, : “Opinions are characterized by ona by : “Opinionsviews subjective the arecharacterized German Constitutional Law (The protection of civil liberties). [freedom of expression, freedom to obtain information, obtain to freedom expression, of [freedom 65 The correctness of the opinions cannot be cannot opinions the of correctness The 16 68 provisions 63 In CEU eTD Collection 72 p. 49 71 a fine.“ or years five than more of not imprisonment to if the act was committed publicly, in a meeting or through dissemination of written materials (section or 11 endanger(3)) his creditworthiness shall be liable to imprisonment of not more than an untrue two years fact or related afine, to and,another person, which may defame him or negatively affect public opinion about him 70 true, be punished with imprisonment for not more than one year or a fine.“ is capable of maligning him ordisparaging him in the public opinion, shall, if this fact is not demonstrably 69 free expression. life, isprivate by with entirely wereattacked which activities, such unconnected political that expression) yields tofree expression. This would not, however, be the case, if a free politician’s the to limitation constitutional (a honor, person’s offended their matters, controversial ( Code Criminal German the of 185-186 Sections free is speech. A balancing conflictingrights the thusrequired.careful of the broader personality rights heading), serves as the most oft-invoked limitation on the media possible”. functioningproper democraticthe society of isand economy as “rendered aseffective the for essential right, fundamental this that so expression”, of freedom to right of light the in be“interpreted need to statutory restrictions such jurisprudence, BVerfG’s tothe According persons involvedactively in affairs. public likelyoffence. is specificmore ofdefamation Thisbeinvoked bypoliticians than case to or an such committing for punishment stricter even imposing arena, political the to connected speech. Section 188 addressesmalicious gossipand defamation involvedof persons or meaning of Articlethe 5(2).Thus itimposes set another limitationsof on media’sthe free StGB for punishment breach of Additionally, isevengreater. sections these Section 187 of the and malicious gossip. Starck, Christian. 1991. which another, to in relation fact a disseminates or asserts “Whoever reads Code Criminal German ofthe §186 Ibid, §187 of the Criminal Code „Whosoeverreads intentionally and knowingly asserts ordisseminates 70 p.49 recognizes defamation recognizes 71 Therefore, if politicians accuse their opponents of incompetency, while discussing 72 New Challenges to the German Basic Law 69 In case such information is disseminated through public media,the as acriminal as offence. The StGB is a “general law” within the within law” “general a is StGB The offence. 17 Strafgesetzbuch . Baden-Baden: Nomos Verlagsgesellschaft, Nomos Baden-Baden: . or StGB)prohibit or insult CEU eTD Collection onMann’s novel. The film won anAcademy Award as a best foreign-speaking picture in 1981. 75 authority.” The case is notorious, as it gave priority to human dignity overthe media’s free speech.” 74 73 Article 1 (1) of Basicthe 1(1)of Law Article personalityconstitutionally protected particularlyrights, human right to the dignity under Articlefreedom underwere balanced individual, 5(3)of private one against that In case Mephisto human dignity under Article 1(1). privacy rights or rights to one’s own words, oft-invoked honor, in conjunctionpersonal to right with the rightincluding to (1), 2 Article under celebrities the of rights personality side are whilethere other the on Article 5(1), under freedom expression media’s of is On the side one rights. fundamental evenmore or competing between two BVerfG, the landmarkThe following well casesillustrate “balancing famous by the exercise”, out carried rights. personality celebrities’ the and freespeech guaranteed between media’s the dichotomy Mephisto novel the of publication announced the case, in this complainant the a publisher, 1963, In book. The injunction against the book was later upheld by Highthe Court of Justice, claiming Appeals of reproduction, HamburgCourt the against the andthe publication distribution of Gründgens. Gründgens’s After his death, son tothe securingturned courts, from aninjunction Höfgerafter modeled that admitted was openly of Mann Gründgens, and resembledthat closely career and character Höfger’s 1963. in October died who Germany, in Nazi actor Hendrikby wasinspired writer’s brother-in-law Gründgens Höfgen the Gustav The The 1981German-Hungarian-Austrianfilm Throughout the years, the German courts, especially the BVerfG, dealt repeatedly with the with repeatedly dealt the BVerfG, especially courts, German the years, the Throughout Mephisto case Article 1 (1) states: „Humandignity shall be inviolable. To respect and protect it shall be the duty of all state Mephisto 75 written by exiled writer Klaus Mann in the 1930’s. The main character of the book 1.8 German case rights regardinglaw celebrities’ personality the , BverfGE 30,173 (1971) , the BVerfG dealt with freedom of expression, specifically with artistic with specifically expression, of freedom with dealt BVerfG the , 73 74 of anotherindividual. private Mephisto, 18 directed by Hungarian director István Szabó, was based was Szabó, István director Hungarian by directed , a well-known CEU eTD Collection Germany, 79 78 in prevailing.dignity result normally would person) deceased a of (even dignity human to right the and expression free to right the a clash between that conclusion the to leads this applied, consistently If value in order. established dignity the of human importance the underlined thus case The attacks on their dignity. Grüdgens’s public memory was still thus alive andworth protecting. 77 Durham and London: Duke University Press, p. 301 76 fades”. of deceased the notand cease does to existupon an individual’s although it“diminishes death, asthememory system of the Basic Law Basic the system of value the in highest the ranking value, supreme a is dignity human view, Court’s the In form”. innovel a“libel work portrayalthe would be aninsulthisto persona. TheBVerfG upheld the judgment, calling the fictional,to Gründgenswere details numerous Grüdgens’ persona.Also, thus attributed and with werepublished, ifHödger violated readers wouldassociate sincemost book readily the be sphere would of personality Gründgens’s protected found, that theCourt Nevertheless, to respect…” right general aperson’s may arts disregard the more than freedom any artistic have over not precedence anddoes social esteem respect to “theindividual’s right stated, TheBVerfG rejected the complaintandruled infavor of Gründgen’s son.As the Court BasicLaw. 5(3)of the Article under andof science art freedom his guaranteed claimingof aviolation tothe BVerfG, turned Subsequently, publisher the goodname a dishonored deceasedactor andmemory the of Ibid see Kommers, D.P. 1997. The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edition. 2nd ofGermany, Republic Federal the of Jurisprudence Constitutional The 1997. D.P. Kommers, see Mephisto case Mephisto case 2nd edition. Durham and London: Duke University Press, p.301-304 , see Kommers, Donald P. 1997. , BverfGE 30,173 (1971) 78 . Aspointed theCourt out, human rightthe to is dignity inviolable State authorities must thus protect even deceased persons from persons deceased even protect thus must authorities State 77 The Constitutional Jurisprudence ofthe Federal Republic of 19 76 as forgrounds injunction. 79 CEU eTD Collection between1956 and 1963.In 1992, served as BavarianMinister President between1978 and 1988 and before as a German Minister of Defence 82 81 80 free expression under Articlefree expression rulednoThe BVerfG infindingfavor, under 5(1). violation their of to right their of violation invoking the BVerfG, the to turned subsequently journalists The case was hisheirspending, continue decided to inthe litigation. journaliststhe statements in from Since Strauss such disseminating while the died press. the form criticism”,lower an enjoiningfavor, ruledunprotected courts of expression. The inhis personalitywho were still yearning forrights astrongman. Strauss turned to the court invoking a violation of his and of figure focal German the within society,who hadbecomethose a mentioned that Strauss human dignity, andrepeatedly Hitler, Strauss between they explicitly any comparison authors excluded stating traditionthat more out of compulsion and expediency, than out of theconviction. Although, the magazine“coerced democrats”. articleso-called the of This personification a as described was Strauss termarticles complainants’ the In wasdescribes an politicians,“insulting personality rights’ figure.of public who followed the has a in andthe Court Germandouble balancingtheexpression endorsed freedom of standard democratic interests, case, mightlikeinfer, the pursuingin one that public andthose private Mephisto Court’s distinguishing between statements contributingissues to of to essential importance the the From expression. an such to yield likely most will rights personality his orientation, political his or character about highly critical evenones, statements, againstthe rights Mephisto be acelebrity. called can daringly issues. During his political career Strauss reached such a degree notorietyof and fame, that he case Stern-Strauss The case of the late Bavarian Prime Minister Franz Josef Strauss also deals with these with deals also Strauss Josef Franz Minister Prime Bavarian late the of case The Stern-Strauss Case (Coerced Democrat Case Franz Josef Strauss Stern-Strauss Case (Coerced Democrat Case precedent. If a public figure, unlike private figure, invokes his figure, her precedent. If personality figure,unlikeprivate or a public (1915-1988), German politician, memberof the Christian Social Union of Bavaria, 80 The Franz Josef Strauss Airport Strauss Franz Josef The 81 This is a landmark case because of its discounting the ),BverfGE 82, 272(1990) ),BverfGE 82, 272(1990) 20 in Munich was named after him. 82 CEU eTD Collection edition. Durham and London: Duke University Press, p. 420 88 opponent of the Nazi regime. Was On Time 87 edition. Durham and London: Duke University Press, p. 422 86 intentionthe giveto itmeaning had thewriter a neverintended.After the Federal High Court for the violation hisof personal honor, as the quotation was false or taken out of context, with by of with power”. ratlike rage rotten remnants the as “dungheap Germanstate defended quotedBöll the havingcharacterized commentator as remarks made, accusing Böll “laying of down groundworkthe for political terrorism.” The Böll, Heinrich writer, Famous words attributed to him which he did notsay. againsthaving words”,asprotecting person the one’s “theto own honor” and“personal right thisIn decision the BVerfG discussed the “general right of intimate sphere,” whichincludes Böll case extent. limited the protectionreasserted humandignitythe of a deceased person,of the although only to 85 84 83 interests…the publicthe protection enjoy greater than merelythat statements serve thepursuitof private to importance are of issuesessential that concerning debate to “contributions held that Court polemical and overstated criticism into belittlement of belittlement person”. criticismof the into andoverstated polemical beyond stray must It issue. an over debate than rather person, the of defamation foreground of takes character insultthe itonly “belittlingan in places statement when Moreover, the notopinion becomedoes aninsultsimply its due to belittling on others”. effect of “astatement stated, As Court the criticism.” insulting as an thestatement of categorization an “incorrect out carried lower courts thatthe states, Court The rights. personality Strauss’s see Kommers, Donald P. 1997. Kommers, Donald P. 1997. Ibid Heinrich Böll Böll case Ibid 85 , 54 BVerfGE 208 (1980) (1917-1985), Nobel the winning prize German writer, author of classicssuch as , Billiards at Half-past Nine former enjoy a presumption in favor of free in of favor speech” former enjoy a presumption The Constitutional Jurisprudence of the Federal Republic of Germany The Constitutional Jurisprudence of the Federal Republic of Germany 87 brought a complaint against a television commentator for or The Lost Honour ofKatharina Blum 86 21 88 Böll subsequently sued the Böllcommentator subsequently 83 Following this logic, the . He was a strict 84 Finally, the Court The Train , 2nd , 2nd CEU eTD Collection edition. Durham and London: Duke University Press, p. 422 93 92 91 90 89 is individual an of sphere personal intimate If place. take will balancing a careful true, are statements these If protection. no constitutional possess above, mentioned as statements, over untrueprevail always will honor personal the exercise”, “balancing to comes it when statementsGenerally, of fact, which correctly”. someone were made “reportthey correctly to are still andincluding accurately”,obliged an“obligation quote to withnonetheless, function, their fulfilling from them” cripple knowledge even and “restrict could truth” the of tell to “duty media’s their the emphasis on exaggerated an held that thus BVerfG the Although, falsity. interpretation.” several open to of a statement interpretation Such quoting someone elseis it make duty-bound to clear that he is employing his own to personality, thismisdeed isnot protected under Article 5 (1) of the Basic Law…The person right speechgeneral another’s impairs “ifbymisquotation one iffalse. Therefore, unprotected factas a andof is astatementsubjective becoming not thus quotation perceivedas opinion, “right to determine how he will present himself to another person or to the public.” the to or person another to himself present will he how determine to “right is his along“speaker’s words” violated, tohishappens,said”. If right with own then the this actually speaker the of what content the distort as to so citation one’s into seep to criticism orrenderedinaccurate”. “falsified, distorted being statements his against rights personality his invoke may individual an that held BVerfG The free commentator’sclaims the justifiable, asunprotected remarks speech. declaring were his both statingfavor, that his in BVerfG totheBVerfGfor ruled The redress. writer turned of Justice upheld the remarks as justifiable under the free speech provision of Article 5, the Kommers, Donald P. 1997. Ibid Ibid Böll case Ibid, p.420 , 54 BVerfGE 208 (1980) 93 The Constitutional Jurisprudence of the Federal Republic of Germany 22 90 As the Court noted, “one may not allow not may “one noted, Court Asthe 92 , 2nd 89 91 A CEU eTD Collection moral code further strengthens the protection of the country’s democratic order and values. 98 and order or democratic order country’s of the protection the constitutional strengthens of the further code moral protection others, of rights the as such privacy, to right the upon imposed Limits 97 Netherlands: KluwerLaw International, p. 36 96 95 Federal Republic of Germany 94 balancing careful to again turn will court the slight, will tend to prevail over the media free causespeech. a serious injury to the However,dignity of an individual, than ifthe personal the honor of injurythe individual to the dignity is only which again requires careful balancing.which careful again requires opposed to the situation when true statements of fact invade the social sphere of an individual, is likely then more fact, prevail, invadedof honor statements as again personal by to true is thus the most common understanding of ismost American understandingthe thus common the of approach. primary aim is to conceal the private information from the public eye. Freedom from intrusion Its individual. the of interests exclusive the protecting right, individualist an solely considered is of privacy right the approach American the Under is approached. right which the through individuality, of levels the in lies systems two the between difference principal The personality”. of one’s development “free the of concept broader the as partof freely,act to of a right concept German privacy individual wasbasis decisions privacy. considered a isof right to this similartothe This Griswold influenced German American conceptright in the personality Supreme Court, deciding the mentioned, As features. common many share countries two the of approaches The their collision with the protected free expression, the latter is more likely to prevail. to likely more is latter the expression, free protected the with collision their is refraingovernment in invading individuals’to privacyrights, required the from case of Cate, Fred H. 1997. Ibid See Grimm. „Meinungsfreiheit“ in Kommers, Donald P. 1997. Ibid Ruiz, Blanca R. 1997. , p.35 and 54-56 1.9 Comparison between theU.S. and Germanapproaches to privacy rights and recognizing the constitutional right to privacy. The personal autonomy to make privacy.autonomy to to personal The constitutional andright recognizing the Privacy in the Information Age Privacy in Telecommunications (A European and American Approach). , 2nd edition. Durham and London: Duke University Press, p. 424 96 94 When it comes to opinions, then in case that they . Washington, D.C.: Brookings Institution Press, p. 99 23 95 The Constitutional Jurisprudence of the 97 Although the Although The Hague, The 98 CEU eTD Collection 101 100 Netherlands: KluwerLaw International, p. 54-56 see Kommers, Donald P. 1997 edition. Durham London:and Duke University p.Press, 422 99 correctly”. correctly someone “report includingquote “obligation obligation to to an and accurately”, contrast to the U.S. Supreme Court, the BVerfG, in BVerfG, the Supreme Court, U.S. the to contrast defametheperson, then itpredominantly insult. an becomes to unprotected isused statement belittling a however If activities. political of character his about remarks due toits belittling effect on asthe others”, public official must endureeven highly critical Stern/Strauss case information. andaccurate impartonly correct to media from has obligation their freedthe standard Interestingly malice actual Court’s Supreme U.S. the figures, public defamation of to comes itWhen for thepreservation of order. German indispensable the democratic thus is Privacy rights. fundamental his of exercise free the for and politics in participation free enough, Germany, on otherthe hand, considers is privacy considered aprerequisitefor the individual’s the BVerfG came to a similar conclusions, like in Ruiz, Blanca R. 1997. Böll case Stern-Strauss Case (Coerced Democrat Case , 54 BVerfGE 208 (1980) 101 , when it held that “a statement of opinion does not become an insult simply Privacy in Telecommunications (A European and American Approach). . The Constitutional Jurisprudence of the Federal Republic of Germany ),BverfGE 82, 272(1990) 24 Böll case 99 , emphasized the media’s 100 Nevertheless, in Nevertheless, The Hague, The , 2nd CEU eTD Collection 104 University Press, p. 140 103 see famous statement “I want to be left alone”. 102 subways” magazines,authorizing their innewspaper, displayed buses, countenance, trainsand exposure of theirlikeness, would feel sorely if deprived nothey longer receivedmoney for Court putit, prominent “far persons having from theirfeelings bruised through public likeness” or name their of use commercial the control to right a have “individuals Federal CircuitJudge Jeromepublicity,identified N.Frank, the rightto arguing that in intoback the 1950’s.In1953, the case well The origin of the right to publicity, as a special category of privacy countries’ distinguishesthe atapproaches. endtwo comparison the chapter of the rights,short The interests. contrary often two these can of balancing the into beinsight interesting traced an law offering case with the speech, free for claims with media’s the arecontrasted rights in andand United and both the legal their States Germany. scope protection, origin, These publicity rights to celebrities’ of anotherpart rights, personality isto devoted chapter This likenesses through public exposure. “It is the personality that creates the asset, and asset, the creates that personality is the “It exposure. public through likenesses prominentexclusivelyand to in people, aninterest famous who havegenerated lives and their See Hixson, Richard F. 1987. The Swedish actress Greta Garbo was famous forshunning any form of publicity, in line with her most Haelan Laboratories v. Topps Chewing Gum “ 2. Publicity rights ofcelebrities or copyright of personality? Being amoviestar,andthisapplies toall of them,meansbeinglookedat every from http://www.imdb.com/name/nm0001256/bio possible direction.Youarenever leftatpeace, you’rejustfairgame” 104 . From the wording of the decision it might be inferred that the new right pertains right new the that inferred be might it decision the of wording the From . 2.1 Theorigin andscopeof publicity rights inthe UnitedStates Privacy inaPublic Society (Human Rights in Conflict). , 202 F 2 25 nd Harlan Laboratories v.TopsChewing Gum, Harlan 866 (1953) Greta Garbo 102 New York: Oxford York: New 103 As the CEU eTD Collection about themselves.” people tend to what “to manipulateRather, alone.left be wantto not do includingcelebrities, people, most mentioned, As the world around them by selective disclosure of facts 109 108 106 University Press, p. 141 Hixson,Richard F. 1987 105 in pivotal the White states, As Justice available. is a profit where there shunnot publicity, do celebrities most Moreover, not mind itif they were in absolute control of the disclosure of information about their lives. pecuniary interest Court put it in right”. of nature protected intothe thepurely account take commercial Roach Studios,Inc Asin is right the orimage.Thusmisappropriation face,name prohibited. one’s From this it is clear thatany advertisersother from using their pictures” the publicity right, in contrastyield them moneyno itunless could bemade subjectthe of an exclusive whichgrant barred to the privacy right,primarily individual’sthe putit, feelings.As “this Court the rightof publicity would usually is a property privacy,publicity rightfocusing to to newly between created the and established right line clear a drew court the publicity, to right the of value commercial the emphasizing By be it through in show business, politics or sports is irrelevant. of herhis by celebrity or status applying the publicity The mannerright. of attaining stardom, exploitation the against fight to right the celebrity the gives interest, media and public the of New York: Oxford University Press, p. 149 107 consequently personalityis the that being exploited” Judge Richard Posner in Hixson, Richard F. 1987. in History” of Personal Exploitation Commercial Controlling ofBiography: a Right “Towards E.D. Lazar, see Carson Here'sv. Johnny PortableToilets, Inc Haelan Laboratories v. Topps Chewing Gum, Price v. Hal Roach Studios, Inc Carson v.Here's Toilets,Inc JohnnyPortable in the commercial exploitation of his identity”. his of exploitation commercial in the . reads: “When determining the scope of the right of . reads: “When of of determiningpublicity …one must theright scope the 109 By extension, celebrities do not mind publicity at all, or at leastmindwould at not atall, Byextension, publicity or do celebrities . Privacy in a Public Society (Human Rights in Conflict) ., 400 F.Supp. 836 (S.D.N.Y.1975) Zacchini v.Scripps-Howard Broadcasting Co . 202 F 2 , 698 F. 2d 831, 837 (6th Cir. 1983) Privacy in aPublic Society (Human Rights in Conflict). 26 106 nd 866 (1953) . 105 Therefore “stardom”, as a prerequisite , 108 „a celebrity has„a a celebrity protected . New York: Oxford 107 Similarly, as the as Similarly, Price v. Hal , “an CEU eTD Collection see others their names, voices, likenesses orphotographs. 113 prohibiting forexample trademark infridgement, trademark dilution orfalse advertising. see purposes, of the name, portrait or picture of any living person. 115 112 111 110 invoked. either in CaliforniaLaw or New York, the laws of these two states are the most likely to be see name, likeness and image also forexample the signature, the photograph, gestures or evenmannerism.. 114 Act) Rights “Celebrities the as commonly (known Code Civil California the rights, directly publicity the Of regulating states the any methods, mayof violators these bestill sued underthefederal Lanham Act. benefitof a publication.” such commercial the gets hasnowidespread his the longentertainer…usually objection publication of to actso ashe purpose. protect them along withprivacyother andrights others still unfairuse law competition forthis recognize Some publicity rights. publicity these of by name,rights protect others whiletheir protection on the federal level. For example, only about half of the states specifically from state may vary legal the regulation controlto protection, this states law. theindividual common Since state, as In the Unitedcontrasted States, publicity rights are protected on the state level by statutory law, and by with copyright and trademark laws that offer uniform Section3344 of the California Civil Code protects the publicity rights of living persons, including among TheNew York Civil Rights Law in its§ 50 and 51 prohibits an unauthorized use for advertising or trade Title 15, chapter 22 of the United States Code, the See §32-36 of the Indiana Code affords even broader protection of publicity rights, protecting besides the besides protecting rights, publicity of protection broader even affords Code Indiana of the §32-36 Zacchini v.Scripps-Howard Broadcasting Co 115 http://caselaw.lp.findlaw.com/cacodes/civ/3344-3346.html http://topics.law.cornell.edu/wex/Publicity http://law.onecle.com/new-york/civil-rights/index.html http://www.in.gov/legislative/ic/code/title32/ar36/ch1.html are the best known. Given, that the permanent address of most of the celebrities is of celebrities the most of address permanent the that known. Given, best are the 111 Nevertheless, in states publicitynotwhichrecognize Nevertheless, through instates protect and do rights 2.2 Legal protection ofpublicityrights bythe U.S. statutory law , 433 U.S. 562 (1977) 113 , Indiana Code Lanham Act 27 110 . regulates the federal trademark law, trademark federal the regulates 114 and the New York Civil Rights 112 CEU eTD Collection 120 University Press, p. 143 University Press, p. 144 see otherwise false orinaccurate statements, if the story includes a matterof „public interest“. the publisher, he can, under the Free Speechclause of the First Amendment, include In in this its case,publishings the U.S. Supremeeven Court found, that in absence of a malicious intent on the side of 119 118 University Press, p. 143 121 117 116 his without act entire a performer’s broadcast to media aright give the not does Amendment First “the that stating, decision, the reversed Court Supreme U.S. the Nevertheless, inevitably imposes limitscertain upon an individual’s privacy”.right to station to show the clip. Citing the the to This thusanauthorization was his act. in seeing interest legitimate publichada the publicity, although hethat, to hadthe right rejected claim,stating Zacchini’s Supreme Court his privacy,specifically for his appropriation unlawful professional of privacy. news Ohio report. station television a during an by run subsequently was shot fifteen-second The filmed. be to not wish explicit his despite reporter freelance a by performance a during recorded was Zacchini Hugo Entertainer on privacy, publicity, and copyright. Zacchini Zacchini v.Scripps-Howard Broadcasting Co. only address the crucial problems regarding these rights, but also show their different aspects. mass of cases the American courts have already decided on thisissue, Iselected those that not Haelan Laboratories publicitythe Morethan years fifty havealreadyrights. passed in sincethe decision the 1953’s of regulation legal pillarthe of important more even perhaps and second the law forms Case Hixson, Richard F. 1987. Smolla, R.A. 1986. Suing the Press. New York: Oxford University Press, p. 126-127 Hixson, Richard F. 1987. Hixson, Richard F. 1987. Time Inc. v Hill Zacchini v.Scripps-Howard Broadcasting Co http://www.oyez.org/cases/1960-1969/1965/1965_22/ is ahighly casedealing important with asitpublicity rights, statements encompasses 385U.S.374 (1967). case, the first importantcase firstcase, the dealing From with publicity rights. the Privacy in a Public Society (Human Rights in Conflict). Privacy in a Public Society (Human Rights in Conflict). Privacy in a Public Society (Human Rights in Conflict). 2.3 U.S. case law regarding publicityrights Time Inc. vHill Time Inc. 117 , 433 U.S. 562 (1977) 118 28 116 Zacchini sued forinvasion TVstation the of 120 the court stated that “freedom ofpress “freedom that stated court the New York: Oxford York: New New York: Oxford York: New Oxford York: New 121 119 The Ohio CEU eTD Collection 126 University Press, p. 146-147 125 124 123 122 confronted with the news concerning matters with interest. confronted news concerningmatters the of public fee“. admission an from charging petitioner the „preventing pay see it effectof fair“,the at to to the with an entertainer”. earn aliving as ability to petitioner’s heartof tothe “goes andsuchabroadcast performance” that of value economic to the threat asubstantial poses act entire of petitioner’s the broadcast “the stated majority, for the writing White, AsJustice rights. of these nature economic publicitythe for andrights their the need protection. Courtreemphasized the Second, the of existenceupheld the Court of all, the Firstissues. many interesting raised decision This owner” copyright liability to the without dramatic work acopyrighted film broadcast and to respondent compensate petitioner the for on histelevision it broadcasting act than the would privilege consent. TheConstitutionmore preventsno aState from requiring respondentto the sharp contrast to contrast sharp andirrelevant inapplicable of when publicity the rights atstake. performers are is interest“ „public publicity. to right the The if performer’s factual news, would violate this report to even freedom broadcaster’s the recognize notdid Court importantly,the Most precedence. take seem to andthemedia’s free between speech, publicity rights publicity conflict rights a celebrities‘ economic deprivation, distinguishing it from economicfalse-light it deprivation,from distinguishing privacy. Ibid Hixson, Richard F. 1987. Ibid 433 U.S.562 (1977) Ibid 123 124 Time Inc. v. Hill, 122 Since “if the public can see the act free on television, it will be less willing less be will it television, on free act the see can public “if the Since The Court clearly likened the violation of Zacchini’s right to publicity to publicity to right Zacchini’s of violation the likened clearly Court The Privacy in a Public Society (Human Rights in Conflict). in wereheldwhich celebrity whenrights togounprotected 29 125 Thus, in the case of a New York: Oxford York: New 126 This is a CEU eTD Collection programme. The actress portraying her would naturally look different than herwords different look and use than naturally herwould portraying actress programme. The would falsely depict her. She thus raised objection tothe form rather than to the content of the it that rather but events, life real fabricate would docudrama the claim that not did Taylor inventing any dialogue? without records, historical the adhere strictly to to media obliged are the facts. Conversely, certain distorting involves each dramatization fact that the and despite people, lifeevents 130 purposes. trade or advertising 129 for picture or name her or of his use unauthorized an from everyone protects statute privacy state New York far-reaching 1903 the since deliberately, The actress sued the ABC at the Southern District Court in Manhattan. The place was probably chosen media are whether the question the case raised the publicity. Second, imposeon unwanted a prior restraint attempting started, to iteven of before docudrama the stop production the to tried actress First, the reasons. for two important is case Taylor The is mylife that fictionalizes away taking me." from laugh—mydepends on—and don'tlook, the way acting, the way I I sound. If elsesomebody 131 128 see bothfor her acting abilities and flamboyant lifestyle.Appeared in numerous famous pictures as 127 wouldherfalsein portray inalight public. eyes of the the financially.A natureits amixturedocudrama, very by facts fictions of herand life, about it exploit to how and when decision the is hers and property private own her but domain, her production the life about life.a “docudrama” is thather of Taylor argued, notpublicstory Elizabeth Taylor 1982, In life. to prevent them from producting and broadcasting unauthorized biographical films her about media,American trying notablelegal actions against two brought Elizabeth Taylor star The v.ABC Elizabeth Taylor Smolla, Rodney A. 1986. Smolla, Rodney A. 1986. Elizabeth Taylor(1932), British-bornAmerican actress, two times Academy Award winner, famous http://www.time.com/time/magazine/article/0,9171,925855,00.html?iid=digg_share Elizabeth Taylor v. ABC, Cleopatra, Who’s Afraid of Virginia Woolf?, Cat on a Hot Tin Roof http://www.imdb.com/name/nm0000072/ 82, Civ.6977 (S.D.N.Y. 1982) 131 Suing thePress. Suing thePress and 127 ElizabethTaylorv. NBC sued the American Broadcasting Corporation (ABC) . New York: Oxford University Press, p.132-133 New York: Oxford University Press, p.131-134 30 130 129 or As Taylor said, “my livelihood Suddenly Last Summer free to dramatize real to dramatize 128 , tostop CEU eTD Collection 135 University Press, p. 134 134 133 132 plaintiff“ the by dramatic presentation of the life of the plaintiff will not be construed as being actually„surely a holding, claim, denied that court The Taylor’s the two. mistake appearance would played Taylor film. As actress biographical Sherylinbroadcasting Fenn(whoportrayed an unauthorized in the film), only generally resembled Taylor, no one familiar with Taylor’s National Broadcasting Company (NBC) Company Broadcasting National the against time this suit, law similar initiated Taylor Elizabeth enough, Interestingly if necessary. docudrama iscompeted, after defamation, it comes tofalsehoods, Taylor can still seek redressand sue productionthe company for privacy,as putit: Taylor „by doing this,ABC is from taking away my income“. difficult, particularly when the person is deceased.Ultimately, this case was about money,not public figure would bebanned from say,projection. Needless to might securing consentprove of explicitthe consent madewithout each Moreover, docudrama personality concerned. make use of suchalife stories, asthey have become partof publicthe domain, along with the life story to exploit in the firstforto the public persistent publicity. Without the public,there would benocelebrity and no place. Therefore, the publicbest solution. celebrities, Most includingpoliticians and athletes,shouldbe more than grateful should alsothe not is bestory life her givenor his exploit and control to theright absolute an rightcelebrity the Granting to truthfulness of facts underlying the and ofreal absence lies, inis decisivefactor, facts. According the production companies, the cases, to the such formatof docudrama is involved dramaticendangered, aseachdocudrama licence some with actuallynot by spoken her. Hixson, Richard F. 1987. Taylor v. NBC Ibid Ibid , 1994 WL 762226 (Cal.Sup.1994) 136 . In connection with these case, Privacy in a Public Society (Human Rights in Conflict). 132 On the other hand, if no dramatization is allowed, the whole the allowed, is dramatization no if hand, other Onthe 135 . This time she sought to enjoin the NBC from NBC the enjoin to sought she time This . 31 Whitehead v. Paramount Pictures ParamountWhitehead v. 133 New York: Oxford York: New 134 And when 137 , CEU eTD Collection celebrating their wedding inthe many of presence including.well-known personalities, known as the “Diors”, two people men three and featuring one woman.campaign advertising In an one launched of theDior adsChristian themogul two Fashion of the “Diors” are the privacy rights doctrine? The American courts say yes. invoking his acommercial herface for advertisement from be or using prevented look-alike) interesting question. Can a person bearing astriking resemblance a well-knownto celebrity (a another raises Onassis Kennedy Jacqueline iconic the concerning case, Onassis The 141 p. 134 see 139 page 40, footnote 205 Quick, theDead or the Imaginary see Beard, Joseph. J. 2001. 136 Dior v. Onassis cases. in both motive main the ultimately were claims financial However, elements. fictional Unlike protecting their rights. in succeed be ones to themediawill the ofcelebrities, life stories public the domain, portray the narrate or media’sfreedom againstthe to areinvoked Thus if rights publicity should also be mentioned. In See Quick, theDead orthe Imaginary 138 137 docudramaproduction, ABC the blocking in succeeded ultimately Taylor Elizabeth although summary, In a name orlikeness that the misappropriation tort protects.“ Wozencraft privacy person’slife“. for appropriatinganother theof story dropped the program. see Smolla, Rodney A. 1986. 140 see Beard, JosephJ. 2001. The actress managed to stop the production of the docudrama, since the ABC finally, under pressure, under finally, ABC the since docudrama, ofthe production the stop to managed actress The http://www.law.berkeley.edu/journals/btlj/articles/vol16/beard/beard.pdf Jacqueline Kennedy Onassis v. Christian Dior-New York, Inc Matthews v. Wozencraft Taylor v. NBC Whitehead v. Paramount Pictures,Corp http://www.uakron.edu/law/docs/stohl352.pdf http://www.law.berkeley.edu/journals/btlj/articles/vol16/beard/beard.pdf Zacchini states that „the narrative of an individual’s life, standing alone, lacks valueof the alone, life,„the standing individual’s narrative of states an that , 1994 WL 762226 (Cal.Sup.1994), 141 , where factual news was twoincluded, wherefactual Taylor the involved, also cases and Midler v. Ford v. Midler , 15F.3d 432, 438(5th Cir.1994) 140 Clones, Bones andTwilight Zones: Protecting the Digital Persona or the Clones, Bones and Twilight Zones:Protecting the Digital Persona or the in the NBC case the Court sided company. in production the casetheCourt with NBC the Whitehead . 53 F. Supp. 2d38, 53 (D.C. Cir.1999) the court found that „there is no tort for invasion of page 262, footnote 41 32 Suing the Press the Suing ., 472 N.Y.S. 2d. 254 (1984) 139 . New York: Oxford University Press, page page 40 138 Similarly, Matthews v. Matthews CEU eTD Collection 146 145 144 advertising or trade purposes, of the name, portrait or picture of any living person 143 142 are closely connected. publicity, and privacy rights, two the that shows thus case The rights. privacy her of violation Onassisdirectly did invoke not her Rather publicity rights. shebasedher claim on the that fact the of because interesting is case Onassis the issue, look-alike the from Aside programs evenor in docudramas, even when hired toportray Onassis. TV parties, on at appear she could Onassis, to herfrom resemblance using prevent Reynolds will have to learn to pay the fare or stand on his own two feet” two own his on stand pay fare or learn the haveto to will “commercial travel hitchhiker fame Asthecourtstated seeking product. to the on another of misleadinadvertising,think, the factendorsed wherethismight Onassishad that people to in commercial least at Onassis, as appearing from prevented thus was Reynolds Barbara name isinvolved, butalso when exploitationthe is performed using alook-alike. enables a ban on the exploitationprofit of another.” of the personality itself, herhis personafrombeing or identity unknowingly misappropriated unwillingly or for the or not just when an actual pictureto use a orbroader interpretation of the law, reading it to protect also the “essencehad court the was misused, or picture) of law portrait the (name, of the elements the of none personSince subsequently obtained. further publication impressionof the adof Onassison the attending basis the Diors’knowingof that Onassis would never posethe for such wedding.a commercial, used alook-alike tocreate Newthe York Civil Dior, Reynolds. secretary Barbara New York her, resembling closely someone Rightsrather Law, Jacqueline Onassis.ititbecomesisexamination, On closer apparent but that Onassis, not Smolla, Rodney A. 1986. Ibid already mentioned §50 and 51 of the Smolla, Rodney A. 1986. Jacqueline Kennedy Onassis v. Christian Dior-New York, Inc., 144 This broader protection of the essence as well as the identity thus Suing thePress. Suing thePress New York Civil Rights Law Rights Civil New York . New York: Oxford University Press, p.118-123 New York: Oxford University Press, p.118-123 33 142 472 N.Y.S. 2d. 254 (1984) Onassis, soughtaninjunction against prohibits an unauthorized use, for use, unauthorized an prohibits 145 Nevertheless, nothing can nothing Nevertheless, 146 143 which she which , CEU eTD Collection 151 150 147 identity.” of one's attributes the of appropriation “the banning case-law, The judgeappliedCalifornia case. this to applicable strictly was rights publicity or privacy regarding statutes existing the of in its None Midler, commercial. thatof Bette resembled closely usedavoice,which Ford when by “sound-alike”, a wasreplaced “look-alike” the that except issue, similar somewhat 149 though it dealt with physical likeness. 148 product.the animpressioncreate sheendorsed to had with that been misused that her, usually associated case the context, this In anda commercial at wereprimarily aimed of likenessexploitation and appropriation their or component“ creative own „their lacked imitations such that found courts the icons, American two these casesof the In personalities. their of imitations professional the against upheld activities. Elvis Presley and Groucho Marx Groucho and Presley Elvis activities. When it comes to imitationsclearly no, protecting the rights of the celebrities over those of a business’s artistic freedom.of said famouscourts American the which to advertising, incommercial people, products of sale the boost the court repeatedlyintent to the with misused comercially were famous celebrities of of personalities attributes upheld bans on such cases both In aspects. different with though issue, similar a with dealt cases these Both identity. „piracy herof identity“ and was therefore considered a torturous misappropriation of Midler’s sellforMidler whichin them“,impression to to wassinging that product, order the amounted See was invoked case the Groucho Marx Productions, Inc. v. Day & Night Co. Bette Midler v. Ford Company Bette Midler v. Ford Company, http://www.law.ed.ac.uk/ahrc/personality/uscases.asp#Midler 150 148 Midler’s voice was thus recognized as an attribute identity herof an Midler’s–something voiceattribute as recognized wasthus 149 In the words of the court „the defendants here used an imitation to convey the convey to imitation an used here defendants „the court the of words the In Motschenbacher v. R.J. Reynolds Tobacco Co, 849 F.2d 460 (1988) Midler v. Ford v. Midler 849 F.2d 460 (1988) 151 , 147 34 were among those, whose publicity rights were (S.D.N.Y. 1981) 523 F.Supp. 485 is also worth mentioning, as it dealt with 498 F.2d 821 (9th Cir. 1974) , even CEU eTD Collection 157 without obtaininghisfor thisinstance consent being or for such paid a service. Finally, since model asa was misused and price Grantprofessional the manufacturer tag. name the of was photograph used fornot advertising,itwas used for purposes asitof trade, showed the Although the longevity the tradition. of news” about “fashion in it picture was amere actor’s the with article the that argument, Esquire’s the him,rejecting sided with court The the price tag. Grant subsequently sued the magazine under the oft-invoked New York law. and manufacturer name the clothing of the contained also picture The of 1970’s. the fashions showing clothes onthebody a model facewearing of superimposed actor’s wasused, the instance, in this However, in 1946. a publication for consent actor’s the with obtained Grant, Cary legend, Hollywood of picture a published magazine Esquire the 1971, In celebrities. news“concerning on „report to circumstances under what then yes, 155 154 153 Cary Grant may be used in the title of an artistic work so long as there is some artistic relevance“. Corporation v.JirehPublishing,Inc classics as 156 152 art of work original an as protection Amendment First much as is to creativeentitled elements significant contains image, that of reproduction a celebrity inruled Court Supreme California As the Amendment. protect them First to under value pureentertainment“, lacking„significant as character, In these cases, the American courts entertained the issue whether the media are free and if free and are media the issuewhether the entertained courts American the cases, these In Smolla, Rodney A. 1986. case Cary Grant /1904-1986/, was one of biggest the stars of the Hollywood golden age, starring in such Smolla, Rodney A. 1986. ETW Corporation v.Jireh Publishing, Inc Comedy III Prods., Inc. v.Gary Saderup, Inc Grant v. Esquire, Inc., 367F.Supp. 876 (S.D.N.Y.1973). 155 The Philadelphia Story 152 , ClintEastwood . However, this is not necessarily the rule in the United States today. in rule necessarily United thisStates the the isnot . However, Suing thePress Suing thePress or Hitchcock‘s and Mohammed Ali . New York: Oxford University Press, p.127-130 . New York: Oxford University Press, p.124-126 . 99F.Supp.2d 829 (June 20, 2003) involving Tiger Woods, held that „a celebrity’s name celebrity’s „a that held Woods, Tiger involving . 25 Cal. 4th 387, 21P.3d 797 (Cal.2001) Comedy III Prods.,Inc.Gary Comedy III v.Saderup,Inc North byNorthwest 35 or To Catch a Thief . “ 153 On issue, this 154 ETW 157 „a 156 CEU eTD Collection see protected if there is a „real“ relationship with the article. of the New York Civil Rights §50 and Law speech does protected not are apply articles to them. newsworthy that Accompanying decided similarly picturesof Appeals Court ofNew York persons are also 162 publicationsthe boosting For example, on and sales. this Ali Mohammed ground to attention attracting of mere purpose the for used pictures, celebrity with deal cases Other in at least California. clause, speech free happened, While be protected. news and cannot categorized as therefore be cannot falseinformation such false,” as recklessly or wasknowingly actor the story about “iftheunderlying commercial exploitation of cover magazinebethe as categorized could 163 161 permission. commercially exploited his name and likeness by placing him on the coverof the magazine without his was false. Together with the libel claim he also invoked his publicity rights stating that the to benewspaper involved in,claiming that the newspaper willfully and maliciously disgraced him, as the article ActorClint Eastwood sued National the Enquirer for the article about the love triangle he was supposed 160 159 158 In protection. Amendment First the of scope the of out news” “fictional the leaving protected, become to happen must“news” really above, asseen However, tradingpurposes. use for advertising or unprotected to in contrast protection, First Amendment is a offered use freethe – this press Whenpurposes of trade. isa picture usedfor reporting andselling the news–themain task of forof its news person’s the for photograph valueandits theuse sakeof andadvertising use the between line the draw to necessity the is decision this of result important most The news, itfashion since happened. never actually pasted the clothes Grant hadnever to hisold becategorizednot couldthis worn as picture, seealso see Smolla, Rodney A. 1986. Ibid Ibid Ali v Eastwood v.Superior Court, 149 Eastwood v. Superior Court v. Superior Eastwood http://www.law.cornell.edu/nyctap/I90_0233.htm . Playgirl, Inc Playgirl, Grant Joseph Finger et. Al vOmni Publications Int 159 Eastwood established that publicity rights prevail against news that nevernews that actually prevailagainstpublicity rights that established ., 447 F.Supp. 723(S.D.N.Y.1978) went further wentbyholding that false news no protection deserves under the Suing the Press the Suing Cal. App3d 409, 422 (Ct. App.1983) 160 the court held that placing the picture of the actor on the 162 . New York: Oxford University Press, p. 135 36 , 77, N.Y.2d 138 (1990) case, whichin 158 161 163 won an CEU eTD Collection University Press, p. 142-143 165 164 outweighs the expressive interests of the imitative artist“. expression beyond that trespass, the state law interest in protecting the fruits of artistic labor significant adding without publicity of right the on trespassing directly gain, commercial “When artistic expression takes the form of a literal depiction or imitation of a celebrity for in decision The true. is opposite the news reporting, to comes when it but media, over the celebrities favor the seem to courts comes to apure commercial exploitation of the celebrities’ personalities and stardom, the it when Although, speech. free media’s the with areconfronted aspects these once courts, of andarather unstableAmerican of various approach publicity rights aspects the cases show the celebrities prevail over the media’s First Amendmentfree speech? The above-mentioned So, how to balance these two seemingly irreconcilable rights? Should the publicity rights of Ali its cover. on against action rights attempt to protect intangible fame and identity. Additionally, both allow financial allow both Additionally, identity. and fame intangible protect to attempt rights original Althoughisprotectworks. to copyright meant the more tangible expression, publicity citizen.” creative ofits works tothe in havingaccess „society’sinterest ithand, protects also other the On effort. for artistic and itsecures compensation ofworks, creative the of authors endeavor is a variant of property law. The goal of copyrightis twofold:it encourages the artistic Because of theirfinancial aspect, publicity rights in many ways resemble copyright, which Hixson, Richard F. 1987. Comedy III Productions Inc v Gary Saderup INC 165 Both Both copyrightand protect against publicity rights unauthorized the usagethe of Playgirl magazinefor anudeheavyweight placing boxer closing resembling Privacy in a Public Society (Human Rights in Conflict). 2.4 U.S. publicity rights v. Copyright Comedy III ., 25 Cal. 4th387 (2001) can thus offer a fair answer by stating: 37 164 New York: Oxford York: New CEU eTD Collection 170 New York: Oxford University Press, p. 154 named the chapter dealing withpublicity rights onpage 133 a “copyright of personality”. 173 172 166 personality” expression: song,film publicity or image). calling Therefore a publicity “copyrightrights of of (regardless and interests of incentive artistic work for medium providecelebrities the of In conclusion, copyright owner.” the copyright damage to and publicity rights public’sthe be“public interest to stating, informed, should interest the possible prevail over are very similar.block attemptinghim. to publication of the a biography about prioritized court case, the this In Both protect the economic herto stop attempt ABC’sthe docudrama However, production. Howard Hughes pose. might rights publicity that limitations restraint prior asthe as substantial not is speech freethe to threat its direct place, has taken an once expression after-the-fact, law is applied copyright threat posed to the freedom of expression and free flow of information and ideas. Since the 169 of infringement an not is or research, copyright, scholarship, use), classroom for copies multiple (including teaching see 171 this. monopolies in expression simultaneously while encouraging competition ideas”illustrate of law provides “copyright that, statement The compensation. creator’s the to superior be use fair the concerning infringed.compensation when 168 law in the USA. 167 Copyright Act between the individual rights of celebrities and the right of the society to know. The 1976 Richard Hixson, in hisoftencited book Privacy Public In a Society (Human Rights in Conflict), Apfelbaumin Hixson, Richard F. 1987. Howard Hughes (1905-1976) was a famous millionaire, aviator, film producer and industrialist. Under §107 the fair use of a copyrighted The Copyright Act, which entered into effect in1978, is the primary legislation dealing with copyright the Ibid, Rosemont Enterprises Inc. v. Random House Ibid, 169 170 http://history1900s.about.com/od/people/p/hughes.htm p.153 p.153-154 Finally, there is a slight difference between the two doctrines regarding the direct the regarding doctrines two the between difference is aslight there Finally, Such prior restraint was, as mentioned, achieved for example by Elizabeth Taylor in Taylor by Elizabeth example for achieved mentioned, as was, restraint prior Such 173 is more than eloquent. The major difference is that traditional copyright lawis copyright traditional isthat major The difference ismore than eloquent. 167 tries to resolve these conflicting interests inits Section 107, aregulation interests resolve conflicting these tries to . 168 Nevertheless, society’s interest in access in artistic works seems to seems works artistic in in access interest society’s Nevertheless, 166 172 Also both bodies of law contain the same dichotomies Privacy inaPublic Society (Human Rights in Conflict). work, forpurposes such ascriticism, comment, news reporting, , 366 F. 2d 303 (82 Cir. 1966) 38 171 lost a case CEU eTD Collection California Civil Code extends the protection of these rights to 70 years after the concerned terminate this right upon death of the person protected. death upon of person the thisterminate right 175 University Press, p. 154 upon death as well. and assignable. thus Sineare assignable they they bycontract, logically beshould assignable The court, siding with the widows, reasoned that the publicity rights are commercialof nature participated. the in any specificfilm which of independent aright considered created, actors comic pictures shot in 1920’sand 1930’s, see 177 179 178 174 Laurel & Hardy many on which copyrightof heldthe Roach Hal Studios, Hardy a claimagainstbrought the 176 was confirmed also in also confirmed was or others they bemay heirs devisees. receivedby or to likeness or name his assign may rights these of holder the that means which devisable, as well as assignable are they rights, property fact in are rights publicity the Since rights. publicity celebrities’ the over prevail eventually and power gain will media itbeis freeas in Therefore, informedto publicinterest likely the stake. through copyright that at are rights publicity when role important an plays also informed in being interest public rights, lawin is artistic interest works to inthecopyright thanin moreaccess pronounced publicity more settled and isuniform, asit regulatedby federal Furthermore, the government. public The succession of publicity rights is permitted under many relevant state laws. For instance, laws.state many under For relevant is of rights permitted succession publicity The Duo consisting of LaurelStan /1890-1965/ and Oliver Hardy /1892-1957/ famous mostly stringthe for of see see Hixson, Richard F. 1987. Ibid, Price v. Hal Roach Studios, Inc Price v. Hal Roach Studios, Inc http://www.law.ed.ac.uk/ahrc/personality/uscases.asp#Price 174 p.142 leading to the coclusion that the copyright is easier to attack on this ground. Yet, on attack this ground. is to easier copyright thatthe coclusion leading tothe 177 films. The issue was who controls the specific value of the characters the characters of the value specific the whocontrols issue was films. The 2.5 Succession of publicity rights in the United States 178 In the words of the court “there appears to be no logical reason to Price v.HalRoach Privacy inaPublic Society (Human Rights in Conflict). ., 400 F.Supp. 836 (S.D.N.Y.1975) ., 400 F.Supp. 836 (S.D.N.Y.1975) http://www.imdb.com 176 , in which the widows of Stan Laurel and Oliver 39 175 The assignability of the publicity rights “ 179 New York: Oxford York: New CEU eTD Collection Berlin causing a public outrage and leading to a legislation need andleading aboutfor the debate outrage that Berlin to causing apublic in sold weresubsequently The pictures window. the through his entering room after picture When German the Chancellor OttovonBismarck diedin 1898, twophotographers his took American invention, has Germany a long of tradition recognizing and them protecting as well. Although publicity as rights, defined in subchapter, arepredominantly previous the an 184 183 California Civil Code as she was domiciled in England, which does not offersuch aprotection.The Court in California declined the postmortem protectionof Princess Diana’s publicity rights under the 182 see By playing the role, Lugosi set the lasting image of on-screen Count Dracula. BelaLugosi (1882-1956), Hungarian actor most famous forplaying Count Dracula in 1931 film exploiting BelaLugosi’s personality withoutrights their permission. 181 180 this. allow to it amend to proposals recent been have there though protection, apost-mortem such grant not does Law Rights Civil York New invoked often most the that mentioning worth years person’sdeath.100 upon the for upto mortem publicity rights protection of death. person’s choice of law choiceprovision” of country, sinceinvoke thethe postmortem “California's cannot protectionheirs andadvisees celebrity’s Therefore hisher death. or time of the at celebrity of publicity post-mortemrights existence of postmortem of protection dependsrights publicity onthedomicilethe of if the celebrity the Code Civil California the under However, lifetime." his during him by all, was if at exercised, rightdomiciled in ofother publicitythat „the statute rightdecided Court, California Supreme doesto exploitnot contain one's a name and likeness is personal to the artist and must be see §32-36 of Indianathe Code see section 3344.1 http://www.dwt.com/practc/entertain/bulletins/08-08_RightofPublicity.htm Cairns v. Franklin Mint Co. Lugosi v. Universal Studios 184 http://www.imdb.com/name/nm0000509/ 180 Interestingly enough, several years before the adoption of the Code, the Code, the of adoption the before years several enough, Interestingly , 603 P.2d 425 (Cal. 1979). Lugosi’s sued heirs Universalthe Studios for 182 , 292, F.3d 1139 (9th Cir.2002), The Indiana Codegoes ineven further guaranteeing the post- 2.6 The origin ofpublicityrights in Germany Lugosi v. Universal Studios Lugosi v.Universal 40 , 181 coming to the conclusion Dracula. 183 It is It CEU eTD Collection see Trademark Review. September/October2008, p. 72 187 186 see Trademark Review. September/October2008, p. 72 Germany’s approach topublicityand imagerights 185 BVerfG in held asthe Nevertheless, history. of an contemporary of coverage event of instancepress for fora well-known person purposes, unauthorized picture specific public outweighs their ifof eye”, general temporarily the in theinterest are “continuously people public the or who own rights. This provision Under thusSection grants 23 rights. personality of concept theof themedia Copyright the right toAct, of broad arenowadaysthe considered apart imageeven alook-alike. rights Such using use consentan is not needed drawings, film paintings,or shots, beiteitherto others, appearance recognizable photograph, in the case of their make thatwould any but sense,persons of in representation anarrow only a picture pictures of displayed only with the person’s consent. Needless say,to the term portrait doesnotrepresent CopyrightIn Section Act, contains toone’s which a“right maybe 22, the portrait”, publicly rights. recognizing these started 1958, in 1958, the in first recognized was personality valueof rights commercial jurisprudence, the German individual’s image. to protectAct), wasadopted the (Copyright personalitywould protect its Shortly and rights. inthereafter, Kunsturhebergesetz1907, the Hamacher, K. and Schumacher, J. (Jonas Rechtsanwaltsgesellschaft mbH) Rechtsanwaltsgesellschaft (Jonas J. Schumacher, and K. Hamacher, mbH) Rechtsanwaltsgesellschaft (Jonas J. Schumacher, and K. Hamacher, Germany’s approach topublicityand imagerights Gentleman Rider case (Herrenreiter), http://www.worldtrademarkreview.com/issues/Article.ashx?g=f3d00b81-c278-4c7a-b787-1b65047459a8 http://www.worldtrademarkreview.com/issues/Article.ashx?g=f3d00b81-c278-4c7a-b787-1b65047459a8 2.7 Legal protection ofpublicityrights intheGerman statutory law Gentleman Rider case Gentleman Rider 187 BGHZ 26, 349(1958) , 186 which corresponds with the time the American courts American the with time the whichcorresponds . published. in Country Correspondents sectionof World published. in Country Correspondents sectionof World 41 185 When it comes to modern to comes it When Nena case , CEU eTD Collection the producer of a computer game to make the product more attractive and boost the profit. see the boost and attractive more product the make to game computer of a producer the In this case, the portrait and the name of the popularGerman soccergoalkeeper Oliver Kahn was used by type of protection of the property aspect of the personality rights. The court in 194 with the contents of thein accordance legal efforts transaction those by beachieved to does intended not occur.“ result the if or lapse later grounds legal ifthe exists at his expense without legal grounds fordoing so is under a duty to make restitution to him. This duty also 193 192 191 190 189 188 812 Section Finally, use the wouldof about beviolated. his self-determination portrait name, if the basic aim of such exploitation is profitmaking. Otherwise, the person’s right to and his portrait of exploitation commercial accept the not need person a such exemption, held in the less available. of public, the personal rights the protection image general andinformative tothe the themore relevant put, history.contemporary Simply forefront the relevance and the informative value of the image or social incidentfor this largely isapproach beingabandoned, replaced by a more flexible in placing approach, the incident. recent the with connection in bean objective only used afforded less individual protection than relative whose persons, unauthorized image could were persons interestabsolute scandals). of public,the the pervasiveandgeneral the or Given accidents of victims as such incident, in aspecific involvement current their of because only known artists)politicians or and“relative personsof contemporary history” (people known well- position, e.g. or their achievements for well-known (people history” contemporary of persons “absolute between distinguished courts German the time, long a For only.purposes commercial is or notapply if theportrait usedfor Section advertising does 23 exception §812 reads: „A person who obtains something as a result of the performance of another person or otherwise or person of another performance the of a result as something obtains who person „A reads: §812 JurPC WebDok. 113/2004 Ibid Fuchsberger case Fuchsberger Kahn v Electronic Arts GmbH, Ibid Nena case http://www.law.ed.ac.uk/ahrc/personality/gercases.asp#Fuchsberger , VI ZR 10/86 Kahn case 188 , VI ZR 285/91 191 193 , even if apersonisinthepublic Section subject to eye, and thus 23 of the Burgerliches Gesetzbuch JurPC WebDok. 113/2004 42 190 (German Civil Code) offers another offers Code) Civil (German As theHamburgCourtofAppeal 192 189 Nevertheless, nowadays Fuchsberger 194 CEU eTD Collection 197 196 195 explicitly recognize the publicity rights, it marked, similarly to similarly marked, it rights, publicity the recognize explicitly not did it Although rights. personality of invasion the compensate financially to necessity the established it as importance paramount of is 1958 from case ground-breaking This (Herrenreiter) Ridercase Gentleman for theirandstandards protection. set these rights. The following violationsof dealtpurported with have repeatedly although courts also German counterpart, three cases dealtAmerican its as extensive as not is with rights publicity regarding law case German essential The problems regarding these rights under Section which 812, for isnosevere intrusion needed. enrichment is unjust an considered of portrait a person’s unauthorized use found the that becomes merely “illusory”. The final amount of the compensation was assessed on basis the assessedon was of the amount compensation final The “illusory”. merely becomes rightotherwise such and be compensated, protected needs to invasion such anunauthorized damage“expressed wasof immaterial inadegradation nature, an of personality”. held suffered andby Court his The the to self-determination. portrait, that extension right deal his injured, to specificallywith thewere hisrightthat plaintiff’s personality rights ruled agency, infavorof ofAppealholding lower plaintiff. courts the the The Court agreed, from an advertising hadbeen picture the andobtained that unrecognizable poster on the Although defendant,the apharmaceutical claimed manufacturer, that the plaintiff is asking for asum he that would haveobtained ifhe hadauthorizedthe hisuse of picture. advertisement for an poster aphrodisiachis without The consent. plaintiff suedfor damages As to the facts, Unitedthe States, beginningthe judicial of the protection of in rights these Germany. the picture of the plaintiff, an amateur show jumper, was used in an Ibid http://www.law.ed.ac.uk/ahrc/personality/gercases.asp#Fuchsberger Gentleman Rider case (Herrenreiter), 2.8 German case law regarding rights publicity BGHZ 26, 349(1958) 196 43 195 Haelan Laboratories 197 Therefore case in CEU eTD Collection personality rights, her violate her herdid depicting children with pictures BVerfGthe First, the heldthat rights. reinforced by her rightdeliveredCourt alandmarkissues decision on concerning celebrities‘ privacy and publicity to family protection herwas protected. „secluded place,“ privacy where under section 6 of picture, depictingthe her sitting in the far end of a restaurantBasic was enjoined, as this was considered one of thepublication Only functions. official than liferather daily private her they depict evenif her consent, without of pictures the publication the tolerate must in she taken public, were allthe pictures excellence“ and as figure par „contemporary as sheholding isa that section 22 of the Copyright Actwas infringed. Copyright the of 22 section of the Basiclaw. She also claimed that her right to control the use of her image guaranteed by Caroline suedinvoking the magazines, her right toprivacy Article according to 2(1)and 1(1) insocializing a far end of shopping, accompanieda restaurant, byher children. Princess horse, a riding as such situations, various in her depicted question, in pictures The a new againstadopted when balancing approach freedom media’s rights the these of speech. isinof Rightsruling, lineCourt Human privacy European the publicity and also, with rights, 201 200 199 198 Revue injunction against the publication of the pictures of her in German magazines, in her German of pictures the of publication injunction the against sought Monaco of Caroline Princess courts, German the before brought cases of series a In Von Hannover amount of compensation. proper the basis for assessing served asthe usethe ofhis photograph existed. thelicense Thus feethatwould been havenormally charged authorizing contract had the haveobtained, would plaintiff the satisfaction hypothetical of the see Ibid Von Hannover case Von Hannover case http://www.echr.coe.int/eng/Press/2004/June/ChamberjudgmentVonHannover240604.htm and Neue Post Neue 199 , 1BvR 653/96 , 1BvR 653/96 . The BVerfG not only addressed many important issues . The BVerfG only manyimportant not regarding addressed 44 200 The lower courts dismissed her claims, 201 Upon appealing Upon BVerfG,the to the 198 Bunte , Freizeit CEU eTD Collection behaves in her private life outside of the representative functions. representative the of outside life private her in behaves case. as inthis life, private their depicting pictures covers also but functions, official their of discharge the to without their consent, under section 23 of the Copyright Act, is not limited topictures relating BverfG alsoheld rightthe thattopublish of persons absolute pictures of history contemporary As such, under they were protected freedom the of press the provisions ofArticle 5(1). matters of formation publicinterest. and were of to the publicthe indeed opinion contribute did contained, they images the with along publications, the that ruled BVerfG the Second, 208 207 206 205 204 203 202 they would havein public.“ how from differently behave they alone, being of confident which, in and alone being of aim afforded only when such persons„retireda secluded place to with objectivelythe perceptible privacy,but privacyhave is person to history alsoabsolute aright contemporary of do retired to a secluded place, even outside of his or her domestic sphere. herdomestic or his of outside even a secludedplace, to retired has objectively celebrity the of once speech freedom media’s the restricted thus The BVerfG houses. their of doors the open they once stop not does thus celebrities the of privacy The be alone“ is not sufficient by itself. Law. trying to prevent the publication of pictures of her. Nevertheless, the BVerfG, in a later case later in a BVerfG, the Nevertheless, her. of pictures of publication the prevent to trying courts German the to turned has repeatedly Caroline Princess in1999, decision this Since celebrities. of lifestyle the and activities everyday the about inform to freedom media’s the with more sided BVerfG dismissing Princess Caroline‘s claims regarding most of the pictures complained of, the Ibid Ibid State” ofthe protection special the enjoy family the and “marriage reads law Basic 6 of the Section Ibid Ibid Ibid Von Hannover case, 202 The appeal regarding the publication of the other pictures was however rejected. however was pictures other the of thepublication regarding Theappeal The BVerfG stressed that the public has a right to know how such person 1 BvR 653/96 206 However, as the Court put it „the mere desire of the person to person the mere desireof „theput it Court asthe However, 207 45 205 According tothe BVerfG 208 However, by 204 The 203 CEU eTD Collection Freedoms, Since Germany is a party to the 209 interest. of public matter placing anemphasis on informativethe of contribution publishedthe article andimage to the in ruling, line ECtHR a it with new approach, this adopted history. Instead, contemporary abandoned its long-term approach of distinguishing between andabsolute relative personsof Interestingly, this ECtHR decision has The picturesatisfy thusservedmagazine’s only to readership. the curiosity the of had a great impact on the BVerfG, which function. any does notevendischarge life, applicant official the has moreover applicant‘s private since such contribution of concerned, publishedthe pictures they since were relatedonly the to see Trademark Review.September/October 2008, p. 72 214 213 212 211 210 Human Rights interest.“ a debate of makegeneral and to articles published photos the that contribution „the be should factor decisive the expression, of freedom the and life Moreover, the Court pointed out that when it comes to balancing the protection of the private life“. for their private of respect and protection of expectation enjoy legitimate a able to life“. sufficientdomestic werenot ensure courts to theeffective protection applicant’sprivate the of by the „thefavor, criteria established holdingCaroline‘s that inruled Princess ECtHR The respect for his private and family life, hishome andhis correspondence“. to right the has „everyone that states which Rights, Human on Convention European the of totheEuropean turned (ECtHR), Article claimingCourt of Rights violation Human 8 the of entertain issues. herconstitutional anysimilarin She then complaint to 2000,refused about Hamacher, K. and Schumacher, J. (Jonas Rechtsanwaltsgesellschaft mbH) Rechtsanwaltsgesellschaft (Jonas J. Schumacher, and K. Hamacher, Ibid Von Hannover v. Germany, Germany’s approach topublicityand imagerights Ibid Ibid Von Hannover v. Germany, 210 http://www.worldtrademarkreview.com/issues/Article.ashx?g=f3d00b81-c278-4c7a-b787-1b65047459a8 In Court’s the „anyone,opinion if even areknown they to thegeneral must public, be each citizen may, after exhausting all the domestic legal remedies, turn to the to turn remedies, legal domestic the all exhausting after may, citizen each to seek protectionagainst the violation of his rights under the Convention. 214 ECtHR,application no.59320/00 (2004) ECtHR,application no.59320/00 (2004) European Convention for the Protection of Human Rights and Fundamental . published. in Country Correspondents sectionof World 46 212 The found Court no 209 European Court of 213 211 CEU eTD Collection rights willfully or negligently intrudes into the personal sphere of another person. another of sphere personal the into intrudes negligently or willfully commercialization if such rights, personality the of commercialization of case in the available, heldCourt under that Section 823 of Germanthe financialCivil Code, is compensation In the previously mentioned the damage arising from this“ see and singing in such notable films as 215 nontrasferable upon found which was moral theiraspect to in contrast personality rights, deceased’s the useof commercial the license useand the control thus can and devisees Heirs rights. personality of aspect commercial the of inheritability the BVerfG acknowledged these rights as unjust enrichment under Section 812 of the German Civil Code. owner of the personality rights to claim compensation for unauthorizedThe case commercialization is important of forfurther use. injunction against several reasons. First,mother’s personality seekingrights, compensation for financial such useandthis an the BVerfG upheld the entitlementfor her suedtheformer violation the executrix CEO of of Lighthouse’s daughter, her estate, of the nameDietrich’sadvertise,mark right the to using the andsignature. Dietrich’s picture, and musical Since betrademark. the aflop, to proved FIAT granted andEllen Lighthouse Betrix about Dietrich, using hermusical a produced GmbH Lighthouse name death, Dietrich‘s Marlene yearafter one 1993, In and life story. The issues. both as itresolved importance essential company also registered „Marlene“ as a publicity rights under the civil law and to their inheritability, the inheritability, their to and law civil the under rights publicity When itcomesfinancial to compensationforan unauthorized commercialization of the case Dietrich Marlene freedom, property or 218 portrait amounts to unjust enrichmemt according to §812 of German the Civil Code 217 216 §823(1) reads „A person who, intentionally or negligently,unlawfully life,injures the body, health, An already mentioned already An Marlene Dietrich case, Marlene Dietrich Marlene Dietrich case, http://www.imdb.com/ under theprotection of §823 (1) (1901-1992), German-American actress and singer, who gained world fame forstarring another right I ZR 49/97 (1999) Fuchsberger case Fuchsberger IZR 49/97 (1999) see 215 Herrenreiter 216 of another person is liable to make compensation to the other party for party other the to compensation make to liable is person ofanother The Blue Engel, A Foreign Affair orStage Fright established concept under which an unathorized use of a person’s case, http://www.law.ed.ac.uk/ahrc/personality/germany.asp the BVerfGthe subsumed personality the rights as 47 Marlene Dietrich case Dietrich Marlene 217 218 Second, the Second, another Third, the is of CEU eTD Collection privacy rights. Finally, be rightof the informed, publicthe to is which animportantargument existence from independent evidenceof another their rights, protection of these separate strong emphasis on their commercial with the rights, of category separate form clearly a rights, privacy with connected remotely value. Many of the U.S. though view,legalfrom determination.also publicity of states point American rights, However, the offer,self to right and in rights privacy their the with associated closely statutes rights, personality the of value a commercial a as rather recognized is publicity to right the in Germany, importantly, Most approaches. countries’ two the distinguishing differences certain still are there Nevertheless, andStates Germany forunauthorized financial of violations offer compensation these rights. their unlawful violation by the media, in approximately the same time. Moreover, both United the existence of these rights, as well as the need to provide an effective remedy in the case(Herrenreiter) case Rider of Gentleman Laboratories v. TopsChewing Gum Copyrightbroad perspective any attribute of a person’s image (as protected by Section 22 of the German Act).Harlan Laboratories v. TopsChewingGum case American in the (as likeness or name the of use commercial the of control a as The either first rights, publicity the of scope and definition the regarding similarities countries show Both American case recognizing these rights was the trademark, unrelated to the freedom arts. freedom unrelated to the of pressor the trademark, Dietrich’s useof mere commercial case involved present the However, information. obtain use Dietrich’s freedom satisfy nameandimageto under Article 5(1),to public‘s rightto the media the upheld BVerfG the Finally, person. living the to link close their of because death, 219 Marlene Dietrich case 2.9 Comparison between theU.S. and Germanpublicity rights , IZR 49/97 (1999) see , decided in 1953, and, decided in1953, firstthe German case was the decided in 1958. Both decidedcountries in1958.Both have thus recognized http://www.law.ed.ac.uk/ahrc/personality/germany.asp ) or as a right to one’s portrait, covering in the 48 219 Harlan CEU eTD Collection 220 elements. comes toinforming on real and truthful news and artistic works of significant creative it when especially of public, the right such a recognize also however law does case American invokedoften against is publicity givenmorerights, law. weightunderthe German The see the Cary Grant 220 , Clint Eastwood and Comedy III. 49 cases, CEU eTD Collection celebrity is a politician, artist, or other figure. In contrast, the German approach seems to offer of the whether regardless same all the media totreat allow celebrities the seems to the theory legal American figures,public and between publicofficials distinction the By eliminating and secrecy. such seclusion over control similarprotect seclusionvalues into countries, suchasthe rightandsecrecyone’s both When it comes to privacy rights separately, the definitionserves, next tostatutory law, as another important source of theirlegal protection. and scope of thesecountries havelaw considerablecase regardingboth privacy and which publicity rights, rights tend to statelevel,the Both on constitutional aresomebackground there guarantees. although mostly byvarious areprotected statutes whileAct, Copyrightrights the American personality the and Law Basic the through level, constitutional federal the on rights these of protection two rights constitute publicity personality fall rights broad the while concept,inrights under the United States the separate privacy and both in Germany, fact that, in liesthe noticed difference main theoretical The entities. From drawn. the practicalhaving beanswer. following atthis acloserlook problem, However, can conclusions the point of view,provide Germany an answer. to attempts subsequent pages,with previous in been the have questions raised repeatedly offers These Nevertheless,issue? this on Germany and States United the of approaches the between differences and similarities main the itare What around? way other stillthe itis or rights, personality remains quite So whom, then,protect? to Does the media’s freedom speechof prevail over the celebrities‘ difficult to find a clear and exact Conclusion 50 CEU eTD Collection media’s rights than than United States. the rights media’s of the more protective somewhat seems Germany account, into Act Copyright German the 23 of Section taking Nevertheless, freely. information to impart media’s right the as well as public both interest, Unitedthe and States Germany beemphasize publicthe rightto informed important toamatter of or news, reporting itcomes when to However, andfame. personalities celebrities favor countries Both inrights. caseof privacy as as significantnot is approach countries’ against the media when it comesdignity. to a pure human not-involved inconjunction in theirinvoked rightrights to public issueswith with the commercialGermany does the opposite, protecting the celebrities’ privacy rights more, especially of those exploitationmedia’s freedom inform,to the U.S. approach seems to favor the media over celebrities, whilethe and rights privacy celebrities’ the between a clash is of there when in general, Therefore, theirinformation. obtain to public the of right the over prevail to seem dignity human and privacy figures not involved inpolitics Böll (such asHeinrich GustavGründgens). Theirrightor to higher protection of againstpersonality themedia’s rights freedom inform to publicregarding Where the treatment of publicity rights is concerned, the difference between two the between difference the is concerned, rights of publicity treatment Where the 51 CEU eTD Collection of theQuick,Dead and the Imaginary, 12. Beard, J.J. New York: Random House, 2000. 11. Rosen, J. 10. Stone, G. R., Seidman, L. M., Sunstein, C. R., Tushnet, M. V., Karlan, P.S. vol. 4,(1890) 9. Warren, S.D. and Brandeis, L.D. “The Right to Privacy 3 Privacythe FirstAmendment) Actionsto 2. Forer, L.G. 8. Westin, A. Institution Press, 1997. 7. Cate, F.H. 1. Labunski, R. 6. Smolla, R.A. New York University Press, 2004. 5. Solove, D.J. New York: Oxford University Inc, 1987. Press, 4. Hixson, R.F. Approach) . and Broadcasting). Ruiz, Blanca R Constitutional Law, http://www.law.berkeley.edu/journals/btlj/articles/vol16/beard/beard.pdf The Hague, Netherlands: Kluwer Law International, 1997. 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Germany Kahn vElectronicArtsGmbH, Marlene Dietrichcase Von Hannover case Fuchsberger case Stern/Strauss case (Coerced DemocratCase) , 54BVerfGE 208(1980) , VI ZR, 10/86 (1986) , BverfGE173 (1971) 30, , BVerfGE269 34, (1973) , VI ZR , VI 285 (1991) , 1BvR 653/96(1999) , BVerfGE241 , (1994) 90, , I ZR 49/97 , I(1999) , ECtHR, Application 59320/00(2004) No. , BVerfGE 93, 266 , BVerfGE 93, (1995) BverfGE 61,1(1982) , BVerfGE65 , (1987) 77, JurPC WebDok.113 (2004) , BVerfGE 10,118 (1959) 55 , BVerfGE 82, 272 (1990) BVerfGE, 82, CEU eTD Collection 56 CEU eTD Collection 57