The plaintiff, a theater publisher, sought a declaration from the Federal Court of Justice (BGH) that it was entitled to grant copyright usage rights to theaters and other users of the work for the original version of Lutz Hübner's play 'Ehrensache'.
The events surrounding the killing of the defendant's then 14-year-old daughter (the so-called 'Hagen Girl Murder Case') served as the basis for this play, written in 2005. The play episodically recounts the events of the day leading up to the crime and incidents from the life of the murdered Ellena, whose character is based on the defendant's daughter. The girl's mother views this as an infringement of her daughter's post-mortem personality rights. She objects that the main plotlines of the play were intentionally based on real events. Her daughter is recognizable in the character of Ellena. Despite changes to the name and some details, the portrayal distorts the daughter's life image and violates her dignity and right to respect. The depiction focuses on emphasizing the deceased's precocious and strong sexual orientation, as well as her lack of character and moral integrity.
The Cologne Regional Court upheld the action and ruled that the staging, performance, and publication of the play did not infringe upon the personality rights of the defendant and her deceased daughter. Upon the defendant's appeal, the Cologne Higher Regional Court dismissed the action.
Following the appellate judgment, the Federal Constitutional Court (BVerfG) declined to rule on the constitutional complaint filed by the current defendant, who had lost a parallel case against a theater (judgment of the Essen Regional Court of October 6, 2006 – 19 O 215/06, subsequently: decision of the Hamm Higher Regional Court of May 16, 2007 – 3 U 258/06), and decided that her daughter's post-mortem personality rights were not infringed by the play 'Ehrensache' (BVerfG, decision of the 1st Chamber of the 1st Senate of December 19, 2007 – 1 BvR 1533/07).
The VI Civil Senate of the BGH, responsible, among other things, for matters concerning the infringement of general personality rights, affirmed the admissibility of the declaratory judgment action brought by the theater publisher in this specific case and largely granted the action on its merits, based on the considerations set forth by the Federal Constitutional Court. He justified his decision by stating that the play 'Ehrensache' is a literary work with a connection to reality, blending factual and fictional descriptions, which do not infringe upon the defendant's personality rights. Considering the necessary art-specific perspective, an infringement of the defendant's daughter's post-mortem personality rights must also be denied.
Default Judgment of the Federal Court of Justice (BGH) of September 16, 2008 – VI ZR 244/07
Lower Courts: Cologne Regional Court (LG Cologne) – 28 O 292/06 – Judgment of February 14, 2007; Cologne Higher Regional Court (OLG Cologne) – 15 U 64/07 – Judgment of September 18, 2007
Source: Press Release from the Press Office of the BGH No. 174/2008 of September 16, 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-Mail: pressestelle@bgh.bund.de.
Attorney Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
