This research offers a discourse on possible conflicts between the GDPR and the German protection paradigm of merchandising of personal images, to which solutions that are theoretically justified, systematically consistent, and practically reasonable are presented for lex ferenda and lex lata.
Letzte Änderung: 18.01.22
The GDPR is devised to enhance one’s control over his/her data by limiting the autonomy in private law from the perspective of (liberal) legal paternalism because consent is increasingly used as a tool to exploit the commercial value of personal data under the cloak of personal autonomy. However, the GDPR’s broad scope of application and its supremacy over national law present a great challenge for reconciliation with national laws in the Member States. There is one legal field that could serve as a model to illustrate this discourse, namely the merchandising of personal images in Germany.
Ever since the first case of merchandising of celebrities’ icons in the early 20th century, German law has made consistent efforts to incorporate the commercialization of personality traits - images, names, voices, slogans, etc. - into the uniform legal regime of personality rights. Upon the condition of identification to a natural person, unauthorized commercial appropriation of personal images is in general prohibited regardless of spiritual harms, because it violates one’s right to self-determination of portraits. Notwithstanding the non-transferability of personality rights in Germany, a person may conclude a permission agreement, a Gestattungsvertrag, or even a soft license with a third party to get a remuneration. Baring the same condition of application, these two legal regimes are nevertheless based on almost opposite logics by encompassing different institutions.
Therefore, it raises the research questions: Are there any regulatory differences between the GDPR and merchandising of personal portraits in Germany? If there are, would the relatively aggressive limits of personal autonomy in the GDPR be proper to replace the German norms? If not, how would these institutional designs in the GDPR be confined to an extent so that it is theoretically justified, systematically consistent, and practically reasonable? Against this backdrop, this research concerns itself exclusively with the commercial value and thus stimulated merchandising of personal images in Germany. Before diving into the comparison between the GDPR and the national protection paradigm, it first draws a concrete contour of the research object through a brief summary of the German legislation and case law about the scope of protection for merchandising of personal images according to art. 22 and 23 KUG. It argues that the triggers and enablers of the recognition and protection for the commercialization of portraits deserves a closer examination due to its significant similarity with the phenomenon that personal data becomes the new “currency” for online services in the digital era. Then, the research goes through an essentially descriptive analysis based on typical publicity cases to pinpoint the regulatory differences between the German approach and the relevant provisions in the GDPR. Finally, solutions to the identified inconsistencies are presented for de lege lata and de lege ferenda.
Jingzhou Sun
Prof. Dr. Michèle Finck, LL.M.
Prof. Dr. Ansgar Ohly, LL.M. (Cambridge)
III.1 Verwirklichung und Perspektiven des europäischen Binnenmarktes
