Violation of personality rights in a feature film?

Feature films are frequently based on real events or are at least inspired by them. It can therefore well occur that someone recognises themselves in the role of an actor when 'their story' has been made into a film. Can that person take action against the release of the film or at least the corresponding scenes?

A man was a student in the 1980s and became, like numerous other students at this school, a victim of extensive sexual violence. In 2011, he wrote a book in which he described, among other things, the sexual assaults.

He takes action against a film that was broadcast in 2014. In this film, one of the characters is a victim of sexual abuse. The plaintiff takes the view that he would be recognisable in the film character. This is already the case due to optical similarities. Furthermore, the sexual assaults to which the film character is subjected are taken from reality and are described in the same way in his book. He also points to further similarities between the film and reality.

The film producer, on the other hand, takes the view that the film characters are purely fictional and depict the typical experiences of numerous abuse victims, which are frequently described in similar ways. The plaintiff's biography diverges from the film, and the film is set in costume and set design in the 1970s and thus before the plaintiff's schooldays.

The court's decision on the feature film

The Regional Court (LG) Hamburg dismissed the action with judgment of 03.06.2016 – Az. 324 O 78/15 .

The court found that the distribution of the film constituted an interference with the plaintiff's general right of personality. Recognisability of the plaintiff in the film would probably be assumed.

In a comprehensive balancing of interests, however, the court decided in favour of the film producer and found that artistic freedom prevailed. The court did not classify the impairment to the plaintiff as so serious that artistic freedom would have to recede. A role was also played by the fact that the plaintiff himself brought the subject matter into the public domain.

The court also took into account the public interest in the dissemination of the film in the balancing exercise. For by means of the film, a broad audience is confronted with the subject of sexualised violence, whose public discussion is of interest to society as a whole. The sensitisation associated with such public discussion of this subject matter is of particular significance for the general public.

Conclusion

Violation of personality rights through portrayal in a feature film is certainly possible. In balancing with artistic freedom, it must be examined on a case-by-case basis how strongly the character differs from its real counterpart and how high the public's information interest is in the dissemination of the film.