BGH lifts ban on "real life horror film" Rohtenburg

From Germany comes the news that the Federal Supreme Court has lifted the ban on the 'real life horror film' Rohtenburg (decision of 26 May 2009, case reference VI ZR 191/08).

Some of our readers may recall the unsettling story of the "cannibal of Rotenburg", Armin Meiwes, who achieved international notoriety for murdering and eating a voluntary victim he had found via an internet ad (see the IPKat's report here). This cannibalistic crime was the inspiration for the film Rohtenburg which its makers had advertised as "real life horror film" and to which Mr. Meiwes took objection. The misspelling of Rotenburg as Rohtenburg was an intentional pun on the German adjective "roh" which translates into the English word "raw", as in raw meat. Mr Meiwes, who serves a life sentence for this crime, took the matter to court and stopped the imminent release of the film by means of a preliminary injunction arguing an infringment of his arguing an infringement of his general personality right as protected by the German constitution in its Articles 1(1), 2(1).

The courts of the first two instances, the Regional Court of Kassel and the Higher Regional Court of Frankfurt (case reference Az.: 14 U 146/07) agreed with the claimant and granted precedence of the constitutional protection of the personality over freedom of art. Both courts agreed that Rohtenburg, which was produced by the defendant, must not be distributed in Germany or shown in German cinemas. Both courts took the view that one can make a film about this murder and this film was protected by freedom of art. However, Rohtenburg had crossed the line, being a mere horror movie with a one sided 'monster portrayal' of the claimant and his crime, which tipped the balance in favour of the personality right. On appeal by the defendant the Bundesgerichtshof has now lifted this ban, assessing the case differently.

The Bundesgerichtshof's reasoning as set out in its press release of 26 May 2009 is translated and summarised below:

The press release starts by setting out the background of the case: the claimant has become well known as the Cannibal of Rotenburg through media reports about his crime and is currently serving a life term prison sentence for this murder. In March 2001 the claimant had killed, frozen and subsequently partly eaten a man. The defendant in the proceedings had produced a film which was based on this crime and which had been advertised as a "real life horror film". The biography and personality traits of the film's main protagonist and the storyline of the film mirror the real life crime and real life biography and personality of the claimant in almost every detail, while the claimant had secured a "comprehensive and exclusive deal" with a production company to exploit his story globally.

The press release continues by stating that the claimant was seeking a ban of the distribution and screening of the film and that his claim was successful in the lower instance court proceedings. However, on appeal by the defendant, the film producing company, the sixth civil senate of the German Federal Supreme Court has now annulled the lower court's decision.

The Federal Supreme court acknowledged that he film could heavily burden the claimant as a person because it brought the crime back to memory in a highly emotionalised way. However, after balancing the conflicting rights, the Federal Supreme Court disagreed with the Higher Regional Court of Frankfurt and gave precedence to the freedom of art and freedom of film over the protection of the claimant's human personality under the general personality right. The court further stressed that the general public had an information interest. The court went on to say that the film did not falsify or distort and did not question the claimant's claim to be respected as a human being. The film scenes did affect the claimant's particularly
protected 'core sphere' to privacy, however this information did directly refer to the crime and person committing the crime, and hence such details could be included. Furthermore, the court noted that all details of the crime had already been known to the general public, also due to the claimant's assistance. The claimant had not contended that the depiction in the film had any new or additional negative consequences for the claimant, particularly with respect to his re socialisation into society."

When comparing the Frankfurt court's earlier decision with the Federal Supreme court's view as set out in its press release, this Kat's initial 'gut' reaction is that the Federal Supreme court did get it right. Both courts, the Frankfurt court as well as the Federal Supreme Court, appear to have raised the same points but have clearly balanced freedom of art and film and the general personality rights differently (all of which are proteced as human rights under the German constitution). It appears from the press release that the Bundesgerichtshof seems to have given more weight to the fact that the claimant had sold his story to the media and that the film had not revealed anything new. It should be mentioned though that in its decision the Frankfurt court had stressed that there was a need of guidance from the Federal Supreme Court for the fairly new phenomenon of cases where a claimant had "sold his story". The press release also notably did not include any comment concerning the "one sided portrayal" of the claimant as a monster, a point the Frankfurt court had found decisive. In short: a very interesting decision and this Kat can not wait to get her hands on the full decision.

Please click here to retrieve the press release.

"Like an animal in a zoo": copyright dispute over Klaus Kinski quotations

German newspapers today report on an interesting court case dealing with potential copyright infringement through the use of direct quotes attributed to the (in)famous late actor Klaus Kinski in a theatre play based on episodes from the actor's life. The late German actor Kinski (pictured left) was well-known for his for his explosive and unpredictable temperament and often played manic characters.

According to the news reports, over 30% of the text of the objectionable 50 minute one-person play "Kinski – Wie ein Tier in einem Zoo“ (in English: Kinski - Like an animal in a zoo) consists of direct Kinski quotes. Some of the quotes appear to have been artistically changed by the play's author. Mr Kinski's ex-wife Minhoi Loanic and his son Nikolai objected to this excessive use and filed a claim for copyright infringement at the Regional Court of Cologne. The defendants in the case, actor Hanno Dinger (pictured in the photo to the right) and director Stefan Krause, argued that their use of Kinski quotes in the play complied with German Copyright Law and was in itself protected by "freedom of art", which Article 5(3) of the German Constitution protects as a basic human right. The defendants stated that they would, in principle, be willing to share potential profits with Kinski's family should the play ever make any money. It appears that the play, which has already been on stage for 2 years, has so far only attracted an average of nine to twelve visitors per performance and has, so far, caused a financial loss of 3000-5000 Euros. "Mere enthusiasm" kept them going, the claimants stated in an interview. The claimants' lawyer, Christine Danziger, was quoted as saying that the court action was not only about protecting copyright but also about potential negative financial consequences for the aspiring actor Nikolai Kinski, whose own stage show was apparently also based on his father's memorable quotes and wisdom. However, Ms Danziger denied earlier reports which had suggested that Nikolai Kinski had sought damages of over 30,000 Euros claiming loss of profits.

After hearing the case, the court on Wednesday suggested a settlement and proposed that the defendants could pay a certain percentage of the profits earned through the performance of the play to the claimants. This proposal was rejected by the claimants who refused to settle the case under on these conditions. The court's decision is now expected for February 2009.

Not surprisingly, the court has already announced that the use of the quotations in the play had to be assessed in the light of the constitutional guarantee of "freedom of art" under Article 5(3) of the German Constitution. In this respect the court reportedly referred to earlier precedents decided by the German Federal Constitutional Court (Bundesverfassungsgericht).

This new Kat ventures the guess that the case will be decided in favour of the defendants, unless Mr Kinski Jnr. was able to prove substantial financial losses:

The German Copyright Act (UrhG) clearly acknowledges the right to quote/cite ("Zitierfreiheit") in its section 51 No. 2 UrhG. Given the defendants' theatre performance clearly falls within the ambit of "freedom of art" Article 5(3), the provision(s) of the copyright act have to be interpreted in the light of the constitution. The German Federal Constitutional Court has previously decided that in cases where an artist quotes another artist, Section 51 No. 2 UrhG not only protects the property interests of the original author (and his legal successors) but also the artistic freedom of the "infringing" artist (see BVerfG-K, NJW 2001, 598 "Grenzen der Zitierfreiheit"). The original author's (and his legal successors) property rights in the quotations are equally protected as a basic human right under constitutional guarantee of 'personal property' in Article 14 of the German constitution. In such cases, the court has to carefully balance the conflicting rights. Only where there is a clear danger that the original author (or his legal successors) could suffer more than just "marginal financial losses", will the "exploitation interest" of the original author prevail over the artistic expression of the second artist. Within the ambit of Article 5(3) of the Constitution, section 51 No. 2 UrhG serves as legal means of "artistic examination" and has to be interpreted liberally.

Even though the outcome of this case appears rather predictable - based on the facts reported in the media - the case has certainly raised Nikolai Kinski's profile and given the young actor some free publicity. The amount of media coverage dedicated to this case might even make some people decide to see the objectionable play.

More on Klaus Kinski can be found here.

More on "Wie ein Tier im Zoo" can be found here.

The German Copyright Act can be found here (in German).

Background information on (un-)successful stage plays can be found here.