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

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.