Deutschlandlied

The Deutschlandlied – Legal Classification and Significance

Historical background of the Deutschlandlied

The Deutschlandlied, officially referred to as the “Song of the Germans,” was written in 1841 by August Heinrich Hoffmann von Fallersleben and composed by Joseph Haydn. Originally conceived as a patriotic poem in the context of the German unification movement, the Deutschlandlied acquired the status of a national anthem of the German Reich, especially from 1922 onward. Since 1952, the third stanza has been the national anthem of the Federal Republic of Germany. This development has always been accompanied by legal, political, and social debates.

Legal Status of the Deutschlandlied

National Anthem in the Basic Law and Legislation

The Basic Law contains no explicit provision regarding the national anthem of Germany. The legal basis for the Deutschlandlied’s function as the national anthem of the Federal Republic was established by a government declaration. On May 2, 1952, Federal President Theodor Heuss and Federal Chancellor Konrad Adenauer agreed via an exchange of letters to use the third stanza of the Deutschlandlied as the anthem. This procedure is considered a constitutive agreement (“Gentlemen’s Agreement”); a formal legislative regulation did not occur. Nevertheless, through this process the Deutschlandlied attained customary law status and a reinforced constitutional standing as a symbol of national identity.

International Dimension and Aspects of International Law

The determination of a national anthem is not expressly regulated in international law. The Deutschlandlied, as an anthem, can however be regarded as an aspect of state symbolism in terms of the exercise of sovereignty. Its use at state receptions, international sporting events, and official occasions follows international conventions.

Protection and Use of the Deutschlandlied

Copyright Issues

The text of the Deutschlandlied as well as the melody by Joseph Haydn are no longer subject to copyright protection, as the respective protection periods (text: deceased 1874, melody: deceased 1809) have expired. Therefore, the song is in the public domain and can, in principle, be used by anyone.

Legal Protection as a State Symbol

The central status of the Deutschlandlied as a national anthem means it enjoys special protection in Germany under the Law on the Protection of Symbols (§ 124 OWiG – Administrative Offences Act). Misuse or disparaging use of state emblems, which also includes the national anthem, can constitute an administrative offense. This particularly concerns distortions or deliberately negative usage during public events.

§ 124 OWiG – Abuse of Coats of Arms, Flags, and Anthems

According to § 124 OWiG, it is prohibited to use “state emblems” abusively or in a manner that violates the dignity of the state. Violations can be punished with a fine. The scope of this protection also includes the Deutschlandlied, insofar as the anthem is regarded as an integral part of state representation.

Use at Public Events

The third stanza of the Deutschlandlied is sung as the national anthem at domestic and international events, state acts, major sporting events, or commemorative ceremonies. There are traditional, and in some cases protocol-based, requirements for its performance. The use of other stanzas has been deemed inappropriate since the end of the Weimar Republic, especially due to the appropriation by the Nazis, and is avoided in official contexts.

Constitutional Assessment

Symbolic Meaning in Light of the Principle of Democracy

In the context of constitutional symbolism, the national anthem holds considerable significance. The exclusive use of the third stanza is emblematic of the value system of the Basic Law: “Unity and justice and freedom.” The inclusion of the national anthem in protocol and its protection from degrading use express the state’s self-understanding.

Freedom of Expression and Handling of the Anthem

According to Article 5(1) of the Basic Law, everyone has the right to freely express their opinion. Provocative or critical engagement with the national anthem is fundamentally protected under this constitutional right. Restrictions arise only in cases of insult to symbols or violations of public order (§ 118 OWiG).

Criminal Law Evaluation

Insulting the Anthem and Limits of Criminal Liability

The Penal Code does not contain a specific criminal offense for “insulting the anthem.” The limits of criminal liability are defined by the general provisions on insult (§ 185 StGB) or public order. If the use of the Deutschlandlied violates the human dignity of others or denigrates state symbols, these acts may, in individual cases, be of relevance under criminal law.

Protection under International Law and for Foreign Anthems

According to § 104 StGB, anyone who “publicly insults a foreign anthem” in a manner that affects diplomatic interests is liable to prosecution.

Legal Debates and Controversy over the Deutschlandlied

Use of the First and Second Stanzas

After 1945, the first stanza became politically and socially controversial due to its historical-political misinterpretation and instrumentalization during National Socialism. Its use is not legally punishable, but in official contexts, it is considered impermissible and inappropriate. Use outside official contexts is subject to the constitutional rights mentioned, but is often socially criticized.

Discussion about Lyrics and Symbolic Impact

The line “Deutschland, Deutschland über alles” should be understood in its historical context of the 19th-century unification movement. Nevertheless, the Nazi reinterpretation led to ongoing sensitivity in state practice. The legal situation remains unaffected; socially and politically, exclusive use of the third stanza is advocated.

Summary

The Deutschlandlied, as the national anthem, is a central part of German symbolic culture. It is not used by explicit legislation, but rather by binding agreement and continued state practice as the official anthem. The third stanza today stands for the constitutional core values. Legally, the national anthem is especially protected as a state symbol, and violations of protocol can be sanctioned as administrative offenses. There are no longer any copyright claims. Public, especially negative use is covered by freedom of expression—its limits are found in public order law and in the protection of state symbols.

Further Reading and Legal Sources (Selection)

• Basic Law for the Federal Republic of Germany (GG)
• Administrative Offences Act (OWiG), in particular § 124
• Criminal Code (StGB), in particular §§ 104, 185
• Correspondence Adenauer/Heuss 1952
• Protocol Regulations of the Federal Government on State Symbolism

Frequently Asked Questions

Is singing all stanzas of the Deutschlandlied permitted in Germany?

There is no general ban on singing the Deutschlandlied in Germany, but the circumstances of the performance are decisive. The third stanza (“Unity and justice and freedom for the German fatherland”) has been the officially recognized national anthem of the Federal Republic of Germany since 1952. Public singing of the first two stanzas is not generally prohibited by law; however, especially the first stanza is highly controversial socially and politically due to its historical use by the Nazi regime. If singing the first stanza occurs in connection with anti-constitutional, right-wing extremist, or inciting activities, it can have legal consequences. Provisions such as § 130 StGB (incitement to hatred) or §§ 86, 86a StGB (use of symbols of unconstitutional organizations) apply if the singing is embedded in a punishable act. In private contexts, without connection to criminal or extremist performances, singing is legal, but may still result in social ostracism.

Is there a legal obligation to use only the third stanza during official events?

Yes, for state and official events, there is a clear legal position based on the Joint Declaration of 1952 between Federal President Theodor Heuss and Federal Chancellor Konrad Adenauer. Accordingly, only the third stanza (“Unity and justice and freedom”) is recognized and used as the national anthem of the Federal Republic of Germany. Using other stanzas is not permitted at state acts, official celebrations, or commemorative events, and is considered a breach of protocol. Even at international sporting events, official bodies represent Germany solely with the third stanza. This regulation is based on the necessity under international and constitutional law to expressly distance the state from the historical contexts associated with the first stanza, especially the Nazi era.

Can public singing of the first stanza of the Deutschlandlied be prosecuted under criminal law?

Mere singing of the first stanza is not per se a criminal offense. However, the conduct may become relevant under criminal law if it occurs in the context of acts under §§ 86, 86a (use of symbols of unconstitutional organizations) or § 130 StGB (incitement to hatred). In such cases, public events, demonstrations, or similar occurrences where the singing of the first stanza is intended to promote Nazi or right-wing extremist ideology are subject to criminal review. Authorities assess the circumstances, intent, and context to determine whether singing violates the human dignity of others, incites hatred, or promotes Nazi ideology. If so, it can be considered part of a criminal act.

How is the use of the Deutschlandlied regulated in broadcasting or advertising?

There is no explicit legal regulation for broadcasting banning the playing of the Deutschlandlied or its stanzas in general. However, public broadcasters have a particular responsibility: programming practices are based on general social conventions and the guidelines of broadcasting councils. The third stanza is broadcast at ceremonial or nationally significant occasions. Broadcasting of the first or second stanza should be critically examined and, particularly in advertising, could be deemed abusive use of a state symbol and a violation of human dignity or youth protection. In advertising, the use of state symbols such as the national anthem is already severely restricted by the Act Against Unfair Competition (§ 4 UWG) and the guidelines of the German Advertising Council, and is generally considered impermissible in connection with the first and second stanzas.

Is there legal protection for the melody of the Deutschlandlied?

Yes, the melody of the Deutschlandlied was composed by Joseph Haydn and was protected by copyright as a musical work. Currently, however, copyright protection has expired, as protection lasts for 70 years after the composer’s death (Joseph Haydn died in 1809). Nevertheless, the melody as part of a national symbol is subject to special protection under the Trademark Act (§ 8 Para. 2 No. 6 MarkenG) and other relevant legal provisions, especially with regard to national symbols. Commercial or degrading usage, even if copyright law does not apply, may have legal consequences, particularly under § 90a Para. 1 StGB (defamation of the state and its symbols).

How should the Deutschlandlied be addressed in school education?

There is no legal obligation to teach or sing the Deutschlandlied. The inclusion in music, history, or civics classes is subject to the educational supervision of the respective German states. In practice, teachers focus on the third stanza, discussing the historical background of the first two stanzas and their political instrumentalization during National Socialism. Pedagogically, all three stanzas are generally handled sensitively, with discrimination, extreme political statements, or abusive use to be prevented. The state school laws also prohibit any form of extremist or inciting activity in class.

Is the text of the Deutschlandlied subject to special copyright or citation regulations?

The text of the Deutschlandlied was written by August Heinrich Hoffmann von Fallersleben, who died in 1874. Here, too, the copyright period of 70 years after the author’s death has long expired, so the text is in the public domain. Nevertheless, regulations exist regarding the use and citation of the text, especially for official public announcements and in media and publications, issued by official bodies. For example, at the Federal Press Conference or in Bundestag documents, only the third stanza is referred to or quoted. Private and academic citations of the entire text are permitted but should always reflect the legal and historical context to avoid misunderstandings and social confusion.