Abstract

http://ssrn.com/abstract=1313654
 
 

Footnotes (289)



 


 



Dignitarian Posthumous Personality Rights - An Analysis of U.S. and German Constitutional and Tort Law


Hannes Rösler


Max Planck Institute for Comparative and Private International Law

December 9, 2008

Berkley Journal of International Law (BJIL), Vol. 26, pp. 153-205, 2008

Abstract:     
Should reputational protections exist for the dead in general and in artistic works in particular? After all, there currently seems to be a trend to spice up depictions of actual incidents by adding imaginary elements, or to intersperse historical facts and figures to render a fully made-up story more credible. The present article examines whether family heirs have legally cognizable rights against inaccurate portrayals of their deceased relatives. Toward this end, the article compares U.S. law to the quite different German approach in the Mephisto decision - a landmark ruling issued by German Federal Constitutional Court (Bundesverfassungsgericht) that established a right to posthumous personality protections based on human dignity (BVerfGE 30, 173). The traditional common law position is, however, that the publication of defamatory material about a deceased person does not give rise to a cause of action by relatives or an organization having the task of protecting the deceased's reputation, and that even a commenced action often has no survivability. This the dead don't hear approach gets - as said - contrasted with the wide-ranging protection for deceased persons in Germany, which is only limited by the passage of time. The article covers in comparative perspective issue such as human dignity as a constitutional value, the basis of of postmortales Persoenlichkeitsrecht including its time span and rights to sue, the prospects for developing a common law posthumous personality right, the particular value of artistic expressions and the remedies available.

Number of Pages in PDF File: 53

Keywords: posthumous personality rights, human dignity, free speech, dignitarian and commercial aspects of personality rights, tort law

Accepted Paper Series


Download This Paper

Date posted: December 12, 2008 ; Last revised: November 16, 2009

Suggested Citation

Rösler, Hannes, Dignitarian Posthumous Personality Rights - An Analysis of U.S. and German Constitutional and Tort Law (December 9, 2008). Berkley Journal of International Law (BJIL), Vol. 26, pp. 153-205, 2008. Available at SSRN: http://ssrn.com/abstract=1313654

Contact Information

Hannes Rösler (Contact Author)
Max Planck Institute for Comparative and Private International Law ( email )
Mittelweg 187
Hamburg, D-20148
Germany
HOME PAGE: http://www.mpipriv.de/en/pub/academic_staff/affiliates/roesler_hannes.cfm
Feedback to SSRN


Paper statistics
Abstract Views: 1,666
Downloads: 155
Download Rank: 111,725
Footnotes:  289

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.390 seconds