Concept and legal significance of likeness
Definition and general principles
Das Likeness in the legal sense refers to the depiction of an identifiable person by optical means such as photography, painting, drawing, video recording, or comparable forms of representation. Identifiability is considered the central criterion: Whether an image is to be understood as a likeness under the law depends primarily on whether the person depicted—whether through external features or context—can be recognized or determined by third parties as an individual personality.
Historical development
Historically, likenesses have been relevant since the first pictorial representations of people. Data protection and personality rights regulations, however, were not codified comprehensively until the 20th century and increasingly protected personal rights with regard to images. In Germany, the Artwork Copyright Act (KUG) of 1907 remains to this day the central legal foundation.
The likeness in German law
Legal foundations
Protection of likeness under the Artwork Copyright Act (KUG)
The Artwork Copyright Act (§§ 22-24 KUG) stipulates that likenesses of a person may, in principle, only be published or distributed with that person’s consent. Consent expresses the right of self-determination over the portrayal of one’s own person.
Personality rights and data protection
Protecting likeness is an essential component of general personality rights in accordance with Article 1(1) in conjunction with Article 2(1) of the Basic Law (GG). This is complemented by the provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG), provided that personal likenesses are digitally processed or distributed.
Legal elements: When is there a likeness?
Identifiability of the person depicted
The decisive factor for legally classifying a depiction as a likeness is whether the identity of the person can be recognized by third parties. This may result from the optical reproduction of facial features, characteristic marks, bodily features, or other identifying factors. Identifiability may also arise from context or from text accompanying an image, for instance if the person’s name is given.
Forms of depiction
Protection of likeness covers all forms of visual representation:
- Photographs
- Paintings and drawings
- Film recordings and videos
- Caricatures and satire
- Montages and collages
- Digital depictions and deep fakes
Legal requirements for publication and distribution
Requirement of consent
The publication or distribution of a likeness generally requires the prior, informed, and voluntary consent of the person depicted (§ 22 KUG). Consent can be given expressly or impliedly, but in case of doubt, must be proven by the publishing party.
Exceptions to the requirement of consent
According to § 23 KUG, there are specific exceptions to the obligation to obtain consent:
1. Likenesses from the field of contemporary history: Likenesses of people of contemporary history can be published without consent if there is a public interest in information.
2. People as mere accessories: Images in which people appear only as accessories beside a landscape or other locality do not require consent.
3. Assemblies, parades, and similar events: Likenesses created in the context of public events may, under certain circumstances, be exempt from the need for consent.
4. Higher artistic interest: Likenesses whose publication serves a higher artistic interest may also fall under the exemption.
Limitations of the exceptions
Even if an exception to the consent requirement exists, the protection of general personality rights applies (§ 23 para. 2 KUG). Publication is prohibited if the legitimate interest of the person depicted or, in case of death, their relatives would be violated. The interests of the depicted person must be weighed particularly against the public interest in publication.
Special protection provisions and liability issues
Protection of the deceased
Protection of Likeness generally continues after death. According to § 22 sentence 3 KUG, consent after the death of the person depicted may be given by the closest relatives. The protection period is generally ten years after death.
Children and minors
For minors, consent can only be given by the legal guardians (§ 22 KUG). The special protection of children’s privacy is ensured through a restrictive interpretation of the protection provisions.
Liability and injunctive relief
In the case of unauthorized publication of a likeness, there are claims for injunction, removal, damages, and, where applicable, monetary compensation. These claims may arise from the KUG as well as from §§ 823, 1004 of the Civil Code (BGB) in conjunction with the protection of personality.
International and European regulations for the protection of likeness
Distinction from EU data protection law
The General Data Protection Regulation (GDPR) classifies image data as personal data and subjects it to comprehensive protection under European law. This is especially relevant for likenesses intended for digital processing, storage, or publication. Processing is generally permitted if there is a legal basis—such as consent.
Limits of international rights regarding likeness
The laws of other countries regarding the protection of likeness and personality rights range from very extensive to rather liberal (e.g., in the United States). For international publications, it is therefore always necessary to check which law applies.
Protection of likeness in practice: Typical issues
Photography in public spaces
The mere taking of a likeness in a public space is legally permissible; however, publication generally requires the consent of the persons depicted unless an exception applies.
Likenesses in employment law
Within the context of employment relationships, publication of employee photographs generally requires consent; the right to give instructions cannot oblige employees to consent to publication of their likeness.
Sanctions for violations of protection of likeness
Civil law claims
Violations can give rise to claims for injunctive relief, removal, damages, and monetary compensation. The legal basis for these claims is found especially in personal rights and the Artwork Copyright Act.
Criminal sanctions
Section 33 KUG also provides for criminal sanctions. Unauthorized dissemination, publication, or passing on of a likeness may be punished by a fine or imprisonment.
Summary
Das Likeness represents a significant manifestation of personal rights, which in German law is comprehensively protected by the Artwork Copyright Act as well as data protection regulations. The publication and use of likenesses generally require the consent of the person depicted, although exceptions exist. Protection of likeness entails far-reaching civil and criminal consequences for violations and is multilayered due to international, European, and national regulations. Practice always requires a careful balance between protection of personality and the public’s interest in information.
Frequently asked questions
Who is entitled to decide about the publication of a likeness?
As a basic rule, the person depicted decides about the publication of their likeness. This right arises from the so-called right to one’s own image, regulated in Germany in §§ 22, 23 Artwork Copyright Act (KUG). According to § 22 KUG, likenesses may in principle only be distributed or publicly displayed with the consent of the person depicted. As a rule, this consent must be obtained prior to publication and, unless otherwise agreed, can be revoked at any time. In the case of minors, the consent of parents or legal guardians is required. Only in certain, legally regulated exceptions (see § 23 KUG, e.g. in the case of likenesses from the field of contemporary history) can express consent be forgone. If the right to one’s own image is violated, the person concerned has various civil law claims, including for injunctive relief, removal, and damages.
What exceptions to the obligation to obtain consent are provided by law?
Section 23 KUG of the Artwork Copyright Act lists some exceptions where a likeness may be published without the consent of the person depicted. These mainly include so-called likenesses from the field of contemporary history, images where the individuals appear only as accessories next to a landscape or other place, depictions of assemblies, parades, and similar events in which the depicted person participated, as well as likenesses that were not commissioned and whose dissemination serves a higher artistic interest. However, a careful balancing of interests must always be carried out for these exceptions, particularly regarding personality rights and the public interest in publication. Publication must never take place if it would violate the legitimate interests of the individual depicted (§ 23 para. 2 KUG).
What claims do individuals have in the event of unlawful publication of likenesses?
If likenesses are published without the required consent or in disregard of the legal exceptions, the person concerned has various legal claims. These include in particular the right to injunctive relief, which can prevent further distribution or publication of the likeness, and a claim for removal, such as deleting photos from the internet. In addition, the person may assert a claim for damages if the publication caused material or non-material harm. Another possible consequence is the payment of monetary compensation for violations of personality rights, especially in the case of serious breaches. In some circumstances, the violator may also face criminal consequences (under § 33 KUG).
How long does the right to one’s own image continue after a person’s death?
The right to one’s own image does not automatically expire with the death of the person depicted. According to § 22 sentence 3 KUG, it continues for a period of ten years after death. During this period, the right to decide on the publication of the likeness belongs to the deceased’s relatives, following a statutory order (e.g. spouse, children, parents). After this period, the right to one’s own image finally expires, and likenesses may, in principle, be used freely. However, post-mortem protection of personality may still apply, for example, if the memory of the deceased is impaired in an unlawful way by a publication.
What is the significance of the declaration of consent for lawful use of likenesses?
A valid declaration of consent is the central prerequisite for the lawful publication of likenesses. It must be given before publication and should clearly and unambiguously relate to the intended use (purpose, scope, duration). A written declaration is typically recommended in order to provide proof in case of a dispute. Consent can, in principle, be revoked unless there are legitimate interests in further use outweighing the revocation (e.g. already printed publications). Consents obtained through fraud, coercion, or error are not legally effective. The transfer of images to third parties must also be explicitly addressed in the consent, otherwise new consent is required.
When does a likeness fall “from the field of contemporary history”?
Whether a likeness comes from the field of contemporary history is often the subject of legal disputes. Generally, it refers to images that pertain to a historical event or a person of contemporary relevance, whose publication enjoys special interest for opinion-forming or public information. An individual case assessment is always required. Not every image of a celebrity meets these requirements; also, personality rights and the public’s right to information must be weighed against one another. Sensitive situations such as private life, state of health, or bereavement are typically protected—even for well-known individuals—and do not justify an exception to the consent requirement.
What must be considered when publishing images on the Internet?
Publishing likenesses on the Internet is subject to the same statutory requirements as in other media, but the legal consequences of violations are often far-reaching and more difficult to reverse online. Due to the possibility of worldwide dissemination and rapid replication by third parties, particular care with consents and exceptions is required. Subsequent deletion can also be problematic, as the material may already have spread further. On social media platforms and photo services, their terms of use must also be observed, particularly with regard to the transfer of rights and possible foreign publication. A violation of the right to one’s own image on the internet can result in significant claims for injunction and damages.
