How can I make a living from writing fiction?
From the Lives of Others - How much can a character from a novel look like real people?
“Life writes the best stories” - if you as an author make this guiding principle the principle of your work, you soon come across the question of how far you are actually real people and events can be used in a novel without facing legal consequences.
The protected fundamental rights
In an "emergency" there are two basic rights that have to be weighed against each other:
The Artistic freedom (Art. 5 para. 3 GG) protects art, its area of work (creation of the work) and its sphere of activity (the dissemination of it). Both the artist and the person who acts as an intermediary between the artist and the public (e.g. publisher, etc.) are protected.
In contrast, that is General personal rights from Article 2, Paragraph 1 of the Basic Law. It is an unwritten basic right and was developed from the general freedom of action. It protects data protection law, the right to self-determination, the right to self-preservation and also the right to self-expression in public. The more one encroaches on the sphere of human life, the stronger the grounds for justification must be. The different spheres are: The social sphere (the area that surrounds private life, i.e. our self-chosen public), the private sphere (the way people live, which is deliberately not supposed to be public) and the private sphere of people (thoughts, sexuality, the emotions). As soon as the person's intimate sphere is interfered with, justification is no longer possible, because it is inviolable.
Fiction of literary work
Since that Fundamental right of artistic freedom is essential for the personal development of people, they are very important. Therefore, the literary work in question is generally assumed to be a fiction. That means that the jurisprudence always assumes first that the one described in the respective literature Action and its characters fictitious and therefore does not affect the general privacy rights of the persons concerned. Of course only if the author himself does not claim otherwise.
Recognizability of real people
This fictional presumption also applies, if clearly the real people as "archetypes" of the novel are recognizable and even further if these real models are portrayed negatively. Because "for a literary work that is linked to reality, it is characteristic that it mixes actual and fictional descriptions." (Federal Constitutional Court in the so-called Esra decision; more on this below).
Requirement for the represented (negative) fiction
So that means that the negative portrayal of the person is not obvious may be taken for the truth. Even if the reader identifies the real person as such, it must be made clear to him that the negative "additions" are fictitious.
The Esra decision
A clear distinction was made in the ESRA decision of the Federal Constitutional Court from 2007 (1 BvR 1783/05).
The subject of the proceedings was a novel published by Kiepenheuer & Witsch in 2003. The book is about an author, "Adam", who leads a complicated love story with the Turkish actress "Esra". Love ultimately fails due to hatred, paranoia and distrust. The different cultural backgrounds and the hateful relationship between Adam and Esra's mother also play a major role in the failure of love.
In the figure of Ezra has found the author's ex-girlfriend again. The life, the family relationships, the profession and even the awards actually conferred were so much like the life of women that they were as a real person for the reader in the fictional character "Esra" recognizable has been. Intimate details, for example the request that she does not want to find herself with her intimate life in one of his novels one day, Biller also described in his novel. The woman's mother also felt that her personal rights had been violated, as she was recognizable by her daughter's identifiability. Mother and daughter took legal action against this. The publication of the novel was therefore legally prohibited.
Although both fictional characters could be clearly identified as the real actress and her mother, the court ruled that only the personal rights of the one were violated so severely that this violation outweighs artistic freedom. The mother's personal rights, however, do not.
Violation of privacy
In the case of the author's ex-girlfriend, the court clearly affirmed the strong violation of the general personality by the literary work. Through the Depiction of the most intimate details the privacy was violated. This sphere is so strongly protected by fundamental rights that no other fundamental right can be balanced against it.
Difference between fiction and truth
Because the relationship between the characters in the novel was so similar to that of Maxim Biller and his former girlfriend, the content of the novel could no longer meet the demands of fiction. According to the court, the reader could no longer distinguish between truth and fiction. This increased the likelihood that the intimate details described by the author were true. In the case of the mother, however, the suspected fiction held up. Maxim Biller expresses himself in his novel about the mother in the form of indirect narratives, rumors and impressions, so that the reader could still suspect fiction.
In summary, the boundaries between the strong Personality violation and that of artistic freedom protected literary fiction is sometimes difficult to define. As soon as the victim "Recognizable as the subject of a media presentation" becomes, i.e. as soon as the person whose character is a role model for a character in a novel is objectively recognizable, the scope of protection of the general right of personality is affected. I.e. then there could be the possibility that the General personal rights violated by the literary work becomes. It is therefore advisable to avoid this problem from the start and to alienate the literary figures in such a way that the work only allows an “art-specific consideration” and thus does not violate the person's right to privacy.
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