General Right of Personality

I’ve been translating some decisions of the Federal Court of Justice, or Federal Supreme Court as I am supposed to call it. The current one is VI ZR 220/01, available at RWS Verlag in German.
The plaintiff was Marlene Dietrich’s daughter, the defendant the newspaper Bild, which had used a photograph of Marlene Dietrich in a TV commercial for a contemporary history supplement.
The court held that if someone was ‘eine absolute Person der Zeitgeschichte’ (rather than a ‘relative Person der Zeitgeschichte’), the newspaper was within its rights: any image of such a person can be freely used by the press.

I don’t always fish around for terminology, but in this case I’d been given a synopsis in English, which had ‘absolute person of current history’, namely a very famous person of recent or present times.

There is an argument for a literal translation together with a definition, I suppose. For another possibility, I found an article online at Jurist by Professor Thomas Lundmark of Munster University (who writes in the journal of the Deutsch-Amerikanische Juristenvereinigung) on the Princess Caroline case.

Prof. Lundmark (I always thought he was German, but he’s from the U.S.A.!) is Professor of Common Law and Comparative Legal Theory at the University of Münster (!) has ‘public figures for limited purposes (relative Person der Zeitgeschichte)’ and ‘public figures for all purposes (absolute Person der Zeitgeschichte)’. This is very nice. The only query I have is that the element of history is lost. But here I am making the mistake of not going back to the German definition. Perhaps ‘figures of contemporary history for all purposes’.There is also a translation of the Princess Caroline case by Raymond Youngs at the Institute of Global Law, already mentioned in this blog. I am not always so happy with Mr Youngs’ solutions, but then his aim in publishing a Sourcebook on German Law, with a synoptic German and English text, was to help English law students about to go to Germany to read German judgments and other documents. (There was a second edition in 2002; mine dates from 1994). I often wonder how these students get on with this fearfully difficult German, but perhaps that’s arrogant of me. Anyway, in that context the translations certainly fill the bill. But he writes here ‘international private law’ instead of ‘private international law’. And ‘Claims to desist from certain actions’, where the preposition ‘to’ seems odd. He writes ‘Pictures of persons regarded as “absolute contemporary persons” form part of contemporary history.’

Both Lundmark’s article and Youngs’ translation also deal with the statute referred to as KUG. This seems another problem. Lundmark mentions the background to this 1907 Act: photographs of Bismarck on his deathbed. The full name is Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie, the short name Kunsturhebergesetz. It’s usual to translate and quote the long name. Thus Artistic Copyright Act would do, but would lose the specific reference to photography. youngs has a typo (Artistic Creations of the Act); Lundmark has Law Regulating Copyright to Works of Portraiture and Photography. I don’t like ‚Law’. Some who use it restrict it to statutes not passed by a parliament. I see nothing wrong with Act here, it’s both BE and AmE. Regulating is a word I avoid because I think it’s usually a Germanism: regeln is usually govern. I would say copyright in. Portraiture makes sense because it is only images of people that are covered, but is a sculpture a portrait? So I go to Markesinis book, where I find Act on the Copyright in Works of Plastic Art and Photography. Hmm – what happened to the graphic arts? Plastic art really narrows it down: it has to be graphic and plastic, at the very least.

Perhaps I should have relied on my own judgment from the beginning: Act on the Copyright in Works of Art and Photography – not the only possibility, but it’ll do.

Incidentally, Lundmark writes of

bq. The German Federal Supreme Court (not to be confused with the German Federal Constitutional Court)…

– exactly, that’s why I don’t like to use the term Supreme Court for the Bundesgerichtshof.

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