Freedom of the Press
Right to Your Own Image – Your Photo, Your Control
Your Face, Your Choice. Whether your photo is posted online without your permission or you want to post pictures yourself—we'll make sure you're on the safe side.
Overview
Three questions decide almost every case
Hardly any area of media law affects as many people as the right to one’s own image. It determines whether a photo of you may be distributed—and whether you can publish images of other people without risking trouble. This is regulated by the German Art Copyright Act (KUG), specifically in Sections 22 and 23 of the KUG. These two sections are over a hundred years old and yet remain highly relevant today: They apply just as much to a vacation photo on Instagram as they do to a drone shot taken over a neighbor’s property.
Essentially, almost every case can be resolved by asking three questions:
- Is an “image” involved at all? In other words: Is a person recognizably depicted?
- Is there valid consent? The basic rule of Section 22 KUG is: no publication without consent.
- Does a statutory exception apply in this particular case? Section 23 of the KUG permits certain publications even without consent.
It sounds simple, but in practice it rarely is. Courts rule on these very three questions every day—and this is exactly where we come in.
Question 1
When is something actually considered a “portrait”?
A likeness is a recognizable depiction of a person—and “recognizable” means more than most people think. It’s not just about the face: a characteristic posture, a distinctive hairstyle, the voice, or the context can also be enough. Even eye bars, pixelation, or small image croppings do not automatically eliminate recognizability.
Things get particularly interesting when it comes to doppelgängers and look-alikes. If a celebrity is imitated by someone who looks similar, this can infringe on the celebrity’s right to their own image—namely, when the impression is created that the person is the real celebrity. The Federal Court of Justice has ruled on this, among other cases, in connection with a “tribute show” centered on Tina Turner and a reenacted pose by Marlene Dietrich from *The Blue Angel*. Where the line between permissible homage and impermissible appropriation lies is a matter of the individual case—and often the decisive factor in a dispute.
If the person is completely unrecognizable, the German Artists’ Rights Act (KUG) does not apply. However, protection may still be provided by the general right of personality—for example, in the case of nude photographs that, while anonymous, are highly intrusive.
Question 2 · Section 22 of the KUG
The basic rule: nothing happens without consent
The basic rule of Section 22 of the German Right of Publicity Act (KUG) is strict and comes as a surprise to many: An image may only be distributed or publicly displayed with the consent of the person depicted. Anyone who posts a photo, prints it in a company brochure, or shares it in a WhatsApp group needs the consent of the person depicted, just to be safe.
This consent can be given explicitly or implicitly—but be careful: Just because someone looks at the camera or allows themselves to be photographed at an event does not mean they have consented to every subsequent use. The decisive factor is the purpose for which consent was given. Someone who consents to a photo being used in a newspaper article has not thereby authorized its use in an advertising campaign. This limitation to the specific purpose is the most common point of contention in practice.
Three points are regularly underestimated
- Range:
In case of doubt, consent covers only what is necessary for the agreed-upon purpose—not the next channel and not the next campaign.
- Cancellation:
Under certain circumstances, consent can be revoked. In the case of intimate photos, consent is generally limited to the duration of the relationship – if the relationship ends, the right to keep or use the photos usually ends as well.
- Minors:
Special rules apply to children and adolescents; in some cases, both parents and the child—if capable of understanding—must give their consent.
While written consent is not mandatory, it is strongly recommended for evidentiary purposes. A clearly worded consent form helps prevent costly disputes later on.
Not sure whether consent is valid?
We'll review your case—before a photo goes online or any trouble arises.
Question 3 · § 23(1) KUG
When Consent Is Not Required
Section 23 of the German Artistic Copyright Act (KUG) is the counterpart to the strict consent rule. It permits four cases in which portraits may be published even without consent:
– Portraits from the field of contemporary history
– Images in which people appear only as incidental elements alongside a landscape
– Images of gatherings, parades, and similar events
– Portraits that serve a higher artistic interest
By far the most important case is that of contemporary history. For a long time, case law distinguished between “absolute” and “relative” figures of contemporary history. Since the Caroline rulings by the European Court of Human Rights and the Federal Court of Justice, this distinction is no longer applied rigidly: Today, a case-by-case assessment is required. Prominent status alone is not sufficient—what matters is whether the reporting contributes to a matter of general interest.
Specifically, this means: Reporting on politicians’ professional activities is largely permitted, whereas reporting on their private visits to the hairdresser or walks on the beach is not. Even public figures retain a degree of privacy in public life. Where the public interest in information is high, the protection of personal rights takes a back seat—and vice versa. This balancing of interests is at the heart of nearly every dispute over a published photograph.
Section 23(2) KUG
The Limit: Legitimate Interests
Even if an exception applies, not everything is permitted. Section 23(2) of the German Artistic Copyright Act (KUG) draws the line: If the publication infringes upon a legitimate interest of the person depicted, it remains impermissible. This is where some cases that initially seemed permissible fall through.
Examples from case law: If a photo of a public figure is misused solely as clickbait—even though the content of the post has nothing to do with that person—it is impermissible. Likewise, profile pictures may not be used to publicly shame people online. And even reporting that is permissible in and of itself must not intrude on a person’s intimate or private sphere simply to satisfy readers’ curiosity.
In short: The lower the actual informational value and the more intrusive the coverage, the more likely your right to privacy will take precedence.
Current
Digital Hotspots
Sections 22 and 23 of the KUG date back to 1907—yet the questions they must address today are highly contemporary.
Social Media
Uploading a photo to Facebook or Instagram does not constitute consent to its redistribution outside the network. Sharing it in a completely different context can constitute a separate violation.
Movies & Videos
A drone can take footage without entering a property. If it films over a neighbor’s yard or captures images of people, this can significantly infringe on personal rights.
Secret recordings
If a person is photographed or filmed without their knowledge, the violation is significantly more serious—with corresponding consequences regarding injunctive relief and compensation.
Online Archives & the "Right to Be Forgotten"
Old reports that were originally lawful may generally remain online. However, the Federal Constitutional Court requires that the intrusion be justifiable at all times—after several years, a person may have the right to have their name removed from search results.
Current
Digital Hotspots
Sections 22 and 23 of the KUG date back to 1907—yet the questions they must address today are highly contemporary.
You will be pictured
Is your photo posted online, in a newspaper, or in an advertisement without your permission? If so, you may be entitled to a cease-and-desist order, removal of the content, and, if applicable, monetary compensation. Speed is of the essence—especially online, where an image can spread in a matter of hours.
You post pictures
Whether you’re a photographer, agency, publisher, company, or artist, you want to work in compliance with the law—from obtaining valid consent (model release) and handling employee photos to knowing when you can invoke an exception. We help you avoid cease-and-desist letters before they’re even issued.
Especially in our key areas—media, fashion, entertainment, and music—the issue of image rights often determines the success of entire campaigns. As attorneys specializing in image rights, we take this into account from the very beginning.
What should I do?
Injured - what now?
If your right to your own image is infringed, you are entitled to several remedies that can be combined:
- Omission:
Publication will be halted, and any risk of a recurrence must be prevented- often through a cease-and-desist letter, or, in urgent cases, through a preliminary injunction.
- Disposal / Deletion:
The image must be removed—from print, the website, social media, and, if necessary, search engine results as well.
- Monetary compensation:
In cases of serious intrusions—such as intimate or particularly revealing photographs—monetary compensation may be considered.
- Damages:
If your image is used for commercial purposes, you can share in the proceeds (keyword: notional royalty).
Which approach is the right one and how much compensation you may be entitled to depends heavily on the specific circumstances—on the severity of the injury, the scope of the case, and the question of fault. That’s exactly what we’ll clarify during the initial consultation, before taking any further action.
Current
Digital Hotspots
Sections 22 and 23 of the KUG date back to 1907—yet the questions they must address today are highly contemporary.
Step
What It's All About
Orientation
Initial Consultation
Assessment of Your Case & Strategy
non-binding
Warning Letter
Enforcing a Cease-and-Desist Order and Removal Out of Court
According to the RVG / Value of the Claim
Temporary Restraining Order
Prompt judicial intervention in urgent cases
According to the RVG / Value of the Claim
Instead of using a flat-rate table—which rarely applies anyway—we’ll assess your specific situation transparently and before any costs are incurred.
"When it comes to the right to one's own image, days—and sometimes even hours—can make all the difference. We'll review your case right away and tell you clearly what's possible—and what isn't."
Patrick Rehkatsch
Attorney · Right to One's Own Image & Media Law · REHKATSCH Attorneys at Law
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Frequently Asked Questions
Frequently Asked Questions About the Right to One's Own Image
My photo was published without my permission—what can I do?
You can demand that the content be removed or that the infringement cease; in cases of serious violations, you can also seek monetary compensation. Speed is especially important online. Gather solid evidence (screenshots with the date) and reach out to us early—during our initial consultation, we’ll tell you which approach is best for your case.
Can my employer continue to use my photo on their website after I've been terminated?
Not automatically. Whether consent that has been granted once continues beyond the employment relationship depends on how it is worded and the circumstances. You can often have further use prohibited. There is no one-size-fits-all answer here—we’ll review the specific case.
Is it okay to take photos of strangers on the street and post them online?
Creation and publication are two separate issues. With regard to publication, the basic rule of Section 22 of the German Artistic Copyright Act (KUG) applies: publication is generally not permitted without consent—unless an exception under Section 23 KUG applies (e.g., incidental works or compilations). When in doubt, it’s better to clarify beforehand than to receive a cease-and-desist letter later.
What does “figure of contemporary history” mean?
The term refers to individuals or events in which there is a legitimate public interest in information. The former rigid distinction between “absolute” and “relative” figures of contemporary history no longer applies today—what matters is a case-by-case assessment.
Does the KUG or the GDPR apply to photos?
Both can play a role. For journalistic, artistic, and similar purposes, the KUG remains the governing law; data protection law may also apply. We’ll provide you with a specific answer as to which rules apply in your case.
Can I revoke consent once I have given it?
Under certain circumstances, yes—for example, if there is a compelling reason or a change in circumstances. When it comes to intimate photos, the right to use them generally ends when the relationship ends. The details determine whether it succeeds or fails.
How much does it cost to take legal action against the publication of a photo?
Fees are determined in accordance with the RVG and the value of the matter. In the case of a justified cease-and-desist letter, the opposing party often bears the costs. We will discuss the fee structure transparently before any costs are incurred.
Related
Read more
In preparation
Model Release & Consent in Photography
How Photographers and Advertisers Can Ensure Compliance with Image Rights.
In preparation
Employee Photos at the Company
Photo Consent Under the KUG and GDPR—From Onboarding to Termination.
RELATED TOPIC
Have you received a warning letter?
What a warning letter means and how to respond properly.
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