Historical development and legal basis
The Art Copyright Act (KUG) was passed in 1907 as a law concerning copyright in works of fine art and photography. It forms a central component of personal rights and protects the right to one’s own image. The core idea of the law is self-determination over the use of one’s own image. § Section 22 KUG stipulates that images may only be distributed or publicly displayed with the consent of the person depicted. The law is regarded as a special form of the general right of personality, enshrined in Articles 2 and 1 of the German Basic Law. Case law has continuously developed the law and adapted it to modern forms of communication. The KUG not only protects against unwanted publication, but also against the creation of images without consent.
- The Art Copyright Act (KUG ) protects the right to one's own image and requires the consent of the person depicted.
- Recognizability includes not only the face, but also identifiable features and contextual information.
- § Section 22 KUG defines consent as a central element and distinguishes between different types of use.
- After the death of the person depicted, relatives have the right to protection for ten years.
- The legal consequences of violations of the KUG are omission, deletion and criminal prosecution.
- Digital technologies bring new challenges for the KUG, especially through social media and AI.
- The GDPR supplements the KUG and additionally protects personal data in digital media.
Scope of application and recognizability
The scope of application of the KUG covers all types of images in which a person is recognizable. Recognizability is not limited to the visibility of the face. Even if friends, acquaintances or family members can identify the person on the basis of particular characteristics, recognizability already exists. Contextual information can also contribute to identification. The law distinguishes between different types of use and recognizes exceptions for certain situations. § Section 23 KUG defines cases in which the publication of images is permitted without consent, for example in the case of images of gatherings or as an accessory. Personal rights and legitimate interests are weighed up against each other.
Consent and legal consequences
Consent to the use of images is the central element of the KUG. It can be express or implied. Consent is deemed to have been granted when payment is made for a photograph. After the death of the person depicted, a right of protection exists for the next of kin for a period of ten years. There are various legal consequences for violations of the KUG. The person concerned can demand the omission, deletion and surrender of photographic material. Under criminal law, there is the threat of imprisonment for up to one year or a fine. Enforcement is carried out as an application offense on the initiative of the person concerned or their relatives.
Digital challenges
Digital technologies pose new challenges for copyright law. Social media, surveillance cameras and AI-supported image recognition technologies are expanding the possibilities of image use. Case law must continuously develop interpretative approaches for new forms of use. The General Data Protection Regulation (GDPR) supplements the KUG and offers additional protection for personal data. Open legal questions exist in particular with regard to the application of the KUG to digital media and international image publications.
