The right to one’s own image is the strongest position you have in this industry: without your consent nobody may distribute a likeness of you or show it publicly. That is regulated in the Kunsturhebergesetz, in Paragraph 22, and supplemented by data protection. It is at the same time the position that is reduced fastest, because that is exactly what the consent in the model contract aims at. This article explains what remains yours, what you give away, why the contract text makes the difference and where copyright sits — namely not with you.
What the right to one’s own image protects
What is protected is the distribution and public display of your likeness. A likeness is any depiction on which you are recognisable, and recognisability does not hang on the face: a tattoo, a scar, a distinctive silhouette or the context of a shot can suffice.
The protection applies independently of whether a shot pleases you and whether it shows you to advantage. It is not limited to nude shots and not heightened for them either; with erotic material it works particularly clearly in practice, because the consequences of an unauthorised distribution are larger.
To be separated from the protection is the taking of the shot itself. The Kunsturhebergesetz speaks of distributing and showing. Whether a shot may be taken is decided first of all by whether you agreed to it, and in the contract context that is exactly the consent.
Consent is the lever
Consent is the exception from the prohibition. Anyone who has effectively consented can no longer rely on the distribution having taken place without permission. It can be given expressly, and the Kunsturhebergesetz contains a rule on this that surprises many people: anyone who was paid for allowing themselves to be depicted is, in case of doubt, treated as having consented.
In this industry that is not a side case, but the normal case, because you receive a fee. Anyone who hopes that in a dispute the question of consent will stand open is hoping for the weaker position.
From that follows the most important statement of this article: what decides is not whether you agreed, but to what exactly. The scope of the consent is determined by what was agreed — and agreed is what stands in the contract.
Why the contract text decides and not the feeling
On set agreements arise in conversation. It is said that the material will only go into the subscription area, that nothing will go into social networks, that the face will not be used for advertising. Such sentences are meant seriously and are still worthless if the contract states that use takes place without content restriction.
In a dispute a court reads the document. What was promised verbally has to be proved, and the person who promised it may no longer work there in two years. What the contract text says, by contrast, stands in black and white.
The practical consequence is unspectacular and effective: what matters to you has to go into the contract. One sentence is enough, for example that use for advertising is excluded or that passing on to third parties requires your consent. Which other clauses still count is in our survey of the model contract clause by clause. How far “unrestricted” reaches is explained in the article on usage rights and channels.
Withdrawal on a change of conviction
A consent given is not in every case for eternity. Case law recognises that it can be withdrawn if the inner attitude of the person depicted has changed substantially and further distribution therefore becomes unreasonable. That is the legal anchor for anyone who after years thinks differently about their shots.
In practice this path is difficult. More than a change of mind is required, namely a substantial change in life circumstances or convictions, and the clearer the contract and the larger the production’s investment, the higher the hurdle. Anyone who withdraws can also be obliged to pay damages, because the production has produced and marketed in reliance on the consent.
Honest is therefore: withdrawal is an instrument for the exceptional case, not an exit button. What is still realistically possible after publication we have written out in detail in deletion and withdrawal.
Copyright does not sit with you
A misunderstanding regularly arises here. The copyright in a photo or film sits with whoever created it: the photographer, the camera operator, the production. That you are visible on the shot does not make you the author.
In concrete terms that means: you may not simply publish pictures from the shoot yourself, not even on your own channel, and not even those on which only you are visible. Anyone who wants to use material for their own portfolio or social networks needs permission from the production for that. The simplest is to settle this before the shoot, with a sentence on the release of individual images for self-promotion.
Conversely there are pairings in which participating persons can have their own neighbouring rights in their performance. Whether that applies to a concrete production is a case-by-case question that nobody can answer across the board. For your planning do not rely on that, but on the contract.
What you should keep yourself
Your legal position is only as robust as your papers. Keep therefore a copy of every contract, the consent and the limits list, plus the invoice and the messages in which the shoot was arranged. Without these papers it cannot later be settled what was allowed and what was not.
A photo of the signed contract on set is better than nothing; a scan is better than the photo. If a production does not want to give you a copy, that is a warning sign in itself: a contract that only one side possesses is not an agreement, but a claim.
Where data protection comes in
Beside the right to one’s own image the Datenschutz-Grundverordnung applies, because shots of you are personal data. From that follow claims of their own that are independent of the Kunsturhebergesetz: you can demand information on which data the production has about you, and under certain circumstances deletion or restriction of processing.
These claims are directed against the contractual partner, not against half the industry, and they do not replace rights in the shots. They are, though, a real path to finding out at all what is stored and where it has gone.
How we handle your data, which papers sit with us and how quickly we react to a deletion request is at the safety standards. For everything that concerns the contract with the production the rule is: read before the signature, not afterwards.
Note: This article provides a general overview and is not a substitute for legal advice.
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