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Intellectual Property Law

: IPKat

BGH lifts ban on "real life horror film" Rohtenburg

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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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.

Full post as published by IPKat on May 28, 2009 (boomark / email).