The artistic freedom is a fundamental right , which is used to protect artistic expressions. In Germany it is anchored in Paragraph 3 of the Basic Law (GG). There it is one of the most heavily protected basic rights in the German catalog of basic rights. The Federal Constitutional Court counts artistic freedom as one of the basic rights of communication and therefore regards it as essential for the basic democratic order.
Art. 5 paragraph 3 GG guarantees artistic freedom. Since the Basic Law came into force, the wording of the fundamental right has been as follows:
History of origin
time of the nationalsocialism
During the National Socialist era in particular , artistic freedom was severely restricted, for example through the book burning in 1933 , various bans for artists (prohibition of performances, prohibitions on exhibitions, etc.) or the degradation of artists and / or their works, for example through Nazi propaganda , National Socialist officials, Nazi newspapers or newspapers connected to the same line or through the “ Degenerate Art ” exhibitions .
The constitution of the German Democratic Republic of 1949 formally protected artistic freedom in Article 34: "Art, science and its teaching are free." This artistic freedom was only on paper. In practice, art was subject to the requirements of the state party SED . In addition to a ban on art forms that express criticism of the prevailing order , the requirement that art must conform to socialist realism massively restricted artistic freedom (see formalism dispute ).
As a consequence, freedom of art was no longer included in the constitution of 1968. Art. 18 mentions culture only as “socialist culture” or “socialist national culture”, thus making it clear that only art in the service of socialism was protected by the constitution and supported by the state. According to the constitution: "The artistic creation is based on a close connection between those working in culture and the life of the people". The government decided which art corresponded to this claim. A free exercise of culture could be defined as "imperialist unculture" to be combated.
The standard does not provide any information on the group of fundamental rights holders. Therefore all natural persons can invoke the basic right. Relevant fundamental rights holders are primarily artists. However, people who make art accessible to the public, such as publishers, film producers, record manufacturers or managing directors of a book publisher, can also be considered. Legal persons can also be bearers of the fundamental right. This also includes some state institutions, such as universities of the arts or music.
The fundamental right protects the freedom of art. This causes difficulties insofar as the concept of art has to be defined so that it is accessible to legal working methods. However, one definition is in conflict with the essence of art, which is characterized by constant development. In addition, a state judiciary, as it existed at the time of National Socialism, should be excluded.
The Federal Constitutional Court saw in the Mephisto judgment of 1971 as a distinguishing feature of art that certain impressions, experiences and experiences of the artist are expressed through free creative design. This definition is called the material art term. In later decisions, the court considered this formula insufficient and developed the formal concept of art. This determines works of art according to their type of work. Art according to the formal concept of art exists if a work can be assigned to a genre that is typical of art, for example word, text or performing games. In conclusion, a work according to the open concept of art is art if it can be continuously interpreted in different ways by the viewer and always opens up new possibilities of interpretation.
The protected area of artistic freedom comprises two fields, the work area and the active area. The former includes the artistic work, i.e. the production of a work of art. Any behavior that serves to make the content of a work of art accessible to an audience falls into the latter area, since art as a fundamental right of communication relates to the public and is therefore dependent on public perception . On the other hand, generating income with the help of a work of art is not protected. An exception arises if the financial aspect is decisive for the exercise of the fundamental right of artistic freedom. However, advertising for a work of art is protected by artistic freedom. According to a decision by the Federal Constitutional Court, advertising itself does not have to meet artistic requirements; artistic freedom can be exercised here regardless of the design.
The scope of artistic freedom does not extend from the outset to the unauthorized use or impairment of third-party property for the purpose of artistic development.
Lens legal dimension
In addition to its function as a subjective right of defense, artistic freedom also contains an objective value decision by the legislature, which obliges the state to promote art. Here, however, he has a wide scope for decision-making and design.
The artistic freedom contains the prohibition to influence methods, contents and tendencies of the artistic activities, in particular to restrict the artistic scope or to prescribe generally binding regulations for this creative process. Disabilities in the effective area of artistic freedom also have an encroaching character. The promotion of individual art movements does not have the character of encroachment, but in the case of a noticeable unequal treatment among the artists, there may be a violation of the general fundamental right of equality under(1) of the Basic Law.
Constitutional justification of an interference
Interferences in artistic freedom require constitutional justification. In order for an intervention to be lawful, it must meet certain requirements.
First of all, it must be possible to restrict the basic right so that its content can be interfered with. One of the hallmarks of artistic freedom is that it is constitutionally guaranteed without reservation. In contrast to some other fundamental rights, the Basic Law does not provide for an express legal reservation for them . An application of the qualified legal reservation of Art. 5 Paragraph 2 GG, as it has been proposed in individual cases, is out of the question. The limits of Art. 2 Paragraph 1 GG are just as inapplicable. However, the Federal Constitutional Court affirmed the possibility of restricting artistic freedom. It sees the fundamental right as restrictable by conflicting constitutional law. This restriction must be based on a law.
The general right of personality comes into consideration as a limitation. This is expressed, for example, in the regulations for the protection of personal honor , which criminalize disparaging images . The Youth Protection Act also contains barriers to art that is harmful to minors , for example the ban on pornographic novels . The regulations on the protection of state symbols, such as the federal flag , also have a restrictive effect . According to the Federal Constitutional Court, these must be interpreted restrictively in order not to curtail the form of expression of political satire.
Furthermore, the intervention must be proportionate. This means a ban on putting the holder of fundamental rights at too great a disadvantage. The Federal Constitutional Court advocates the theory of interaction . This means that laws that restrict artistic freedom must in turn be interpreted in the light of artistic freedom. This means that if a person's artistic freedom is restricted due to a law, either the legislature or the court must carefully weigh up the artistic freedom and the legally protected conflicting constitutional good. It follows that artistic freedom, as a particularly protected basic right, may only be restricted for particularly important reasons. When artistic freedom collides with the fundamental rights of other citizens, such as the guarantee of property, practical concordance also requires a weighing of interests .
The citation requirement of Paragraph 1, Sentence 2 of the Basic Law does not apply to artistic freedom, since the basic right has no explicit legal reservation.
Artistic freedom takes precedence over freedom of expression from Paragraph 1 GG as lex specialis , provided that the opinion is expressed in an artistic way. A specialty relationship also exists with the general freedom of action from Paragraph 1 GG. If a work of art has a sacred background, there is ideal competition for religious freedom from GG.
Consideration by the legislator
Artistic freedom must also be observed by the legislature, since this basic right must not be restricted by laws compared to other basic rights (see above). So contains z. B. The Art Copyright Act , which criminalizes the publication of images without the consent of the person depicted, a provision according to which such consent is not required if there is a higher interest in art . Accordingly, artists are allowed to exhibit portrait paintings, artistic photographs and other representations of people in public without being asked to do so, without being able to be prosecuted for this.
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- Artistic freedom: performance unsuccessful - what are the consequences for the artist? Article by RA Prof. Dr. jur. Dieter name
- BVerfGE 30, 173 - Mephisto
- BVerfGE 67, 213 - Anachronistic move
- BVerfGE 77, 240 - Herrnburg report
- BVerfGE 83, 130 - Josephine Mutzenbacher
- BVerfG, 1 BvR 1783/05 (Esra decision)
- BVerwGE 1, 303 - "Sinner" case
- Fire, ice and dynamite decision of the BGH
- Intervention in artistic freedom , 2019
- Art. 34 Constitution of the GDR 1949
- Art. 18 Constitution of the GDR 1968
- Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 230.
- BVerfGE 119, 1 (22): Esra judgment.
- BGHZ 130, 205 (218).
- BVerfGE 36, 321 (331).
- BGHSt 37, 55 (62).
- BVerfGE 67, 213 (224): Anachronistic move.
- Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 229.
- BVerfGE 30, 173 (188-189).
- BVerfGE 67, 213 (226): Anachronistic move.
- BVerfGE 67, 213 (226 f.): Anachronistic move.
- Gröpl / Windhorst / von Coelln / Gröpl , Study Commentary GG, 2013, p. 132.
- Ulrich Karpen, Katrin Hofer: The artistic freedom of Art 5 III 1 GG in the jurisprudence since 1985. Part I. In: Juristenteitung , issue 47/1992, page 952 ff.
- BVerfGE 30, 173 (189): Mephisto judgment.
- Pieroth / Schlink / Kingreen / Poscher, Staatsrecht II, 2014, p. 170.
- BVerfGE 31, 229 (239).
- BVerfGE 77, 240 (251).
- BVerfG, decision of March 19, 1984, 2 BvR 1/84, NJW 1984, 1293, 1294 - Sprayer von Zürich ; BVerwG, decision of April 13, 1995, 4 B 70/95, NJW 1995, 2648 f.
- Uwe Scheffler: Art and Criminal Law European University Viadrina Frankfurt (Oder), as of April 2014. Last modification: April 27, 2018.
- Hamburg Administrative Court, judgment of February 26, 2015 - 20 K 2855/13
- Decisions of the Federal Constitutional Court , Volume 81, p. 116.
- Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 229.
- Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 231.
- BVerfGE 83, 130 : Josephine Mutzenbacher.
- BVerfGE 30, 173 (191-192): Mephisto judgment.
- Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 232.
- BVerfGE 67, 213 (228): Anachronistic move.
- BVerfGE 119, 1 (23): Esra judgment.
- Gröpl / Windhorst / von Coelln / von Coelln , Study Commentary GG, 2013, p. 21.
- BVerfGE 83, 130 (142): Josephine Mutzenbacher.
- Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 36.
- Federal Constitutional Court, Anachronistic Train, in: Neue Juristische Wochenschrift , 1985, p. 264.
- BVerfGE 81, 278 (293).
- BVerfGE 81, 298 (304).
- Jarass / Pieroth / Jarass , Basic Law of the Federal Republic of Germany Commentary, 2014, p. 233.
- Ronen Steinke: Trial of graffiti sprayer OZ: If Banksy were here Süddeutsche Zeitung , July 27, 2011
- Review (Deutschlandfunk Kultur)