The plaintiff, a theatre publisher, sought a declaration before the Federal Court of Justice (BGH) that it was entitled to grant theatres and other users of works copyright exploitation rights in the original version of the play "Ehrensache" by Lutz Hübner.
The events surrounding the killing of the defendant's then 14-year-old daughter (the so-called "Hagen girl murder case") served as a model for this stage play written in 2005. In the play, the course of the day leading up to the crime and events from the life of the killed Ellena, whose character is based on the defendant's daughter, are narrated episodically. The girl's mother sees this as a violation of her daughter's post-mortem right of personality. She complains that the main plot lines of the play were intentionally based on real events. Her daughter was recognisable in the character of Ellena. Irrespective of the change of name and some details, the portrayal distorts the image of the daughter's life and violates her value and claim to respect. The depiction was limited to emphasising the precocious and strong sexual orientation of the deceased as well as her lack of character and morals.
The Regional Court of Cologne upheld the action and found that the production, performance and publication of the stage work did not conflict with the personal rights of the defendant and her deceased daughter. On appeal by the defendant, the Cologne Higher Regional Court dismissed the action.
After issuing the appeal judgement, the Federal Constitutional Court (BVerfG) did not accept the constitutional complaint of the current defendant, who had been unsuccessful in parallel proceedings against a theatre (judgement of the LG Essen of 6 October 2006 - 19 O 215/06, hereinafter: decision of the OLG Hamm of 16. The Federal Constitutional Court (BVerfG, decision of the 1st Chamber of the 1st Senate of 19 December 2007 - 1 BvR 1533/07) did not accept the appeal for a decision and ruled that the post-mortem right of personality of her daughter was not violated by the play "Ehrensache".)
The VI. Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for questions of infringement of the general right of personality. The Federal Court of Justice's sixth civil senate, which is responsible for issues including the violation of general personality rights, affirmed the admissibility of the action for a declaratory judgement brought by the theatre publisher in the specific case and essentially granted the action on the merits based on the considerations set out by the Federal Constitutional Court. It justified its decision by stating that the play "Ehrensache" was a literary work with a reference to reality, mixing factual and fictional depictions, which did not infringe the defendant's right of personality. In the required art-specific consideration, a violation of the post-mortem right of personality of the defendant's daughter was also to be denied.
Judgment by default of the Federal Supreme Court (BGH) of 16 September 2008 - VI ZR 244/07
Previous instances: Regional Court of Cologne (LG Köln) - 28 O 292/06 - Judgment of 14 February 2007; Higher Regional Court of Cologne (OLG Köln) - 15 U 64/07 - Judgment of 18 September 2007.
Source: Press release of the press office of the Federal Supreme Court No. 174/2008 of 16.09.2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-Mail: pressestelle@bgh.bund.de.
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
