Technoviking – an Internet Meme Against His Will

Type “Technoviking” into an internet search engine. The result? Even after more than 25 years, an endless stream of YouTube videos, a dedicated Wikipedia page, a wealth of themed digital art, and sales of printed T-shirts, mugs, underwear, collectible figurines, toys and gaming characters based on this internet phenomenon from the year 2000. A legend was born – one that will never be forgotten…

On 8 July 2000, an electronic music festival (Fuckparade) was taking place in the streets of Berlin. There, the artist Matthias Fritsch filmed a 4-minute experimental video titled “Kneecam No. 1”, with the following content:

The camera captures a small group of dancing people, with a girl with blue hair in the foreground. An intoxicated man approaches the girl and seems to harass her – at the very least, he gives her a slight shove. A burly protector enters the scene, a man with a bare, muscular chest and a Nordic, lumberjack appearance, who grabs the troublemaker by the arms to set him straight and dismisses him with an iconically raised index finger and a stern look. Another man comes from the back of the scene and brings the Techno Viking a bottle of water. The dance display continues, full of the rough dancer's dynamic, synchronised moves. This anonymous dancer became an internet star without ever giving his consent. The video racked up almost 16 million views and went viral in 2007. A whole series of remixes, versions of the original video and merchandise bearing his image followed.

In connection with the video, the author earned almost EUR 10,000 – through exhibitions, lectures and the sale of goods (mugs, T-shirts, phone cases) bearing the image of the Technoviking.

In 2013, the Techno Viking sued Fritsch for infringement of his personality rights. The Techno Viking's lawyer argued that his client had never been a public figure and had never wished to become one. He also claimed a violation of his client's privacy. The court ruled in favour of the claimant – the Techno Viking. Under the threat of substantial fines, the court ordered Fritsch to stop publishing the Techno Viking's image in a recognisable manner and imposed on him the obligation to pay the Technoviking damages totalling EUR 9,420.60 – that is, almost everything he had earned from YouTube advertising and from the sale of Techno Viking merchandise. The dispute undoubtedly became one of the most important legal battles on the internet.

Paradoxically, after the ban the derivative videos became even more popular, and there was nothing anyone could do about it – they were beyond Fritsch's control. In 2015, Fritsch also made a documentary about this legendary phenomenon, “The Story of Technoviking”, which was funded through a crowdfunding campaign.

In today's internet age, you might wonder why such fame bothered the Technoviking and why he did not want to profit from it. The Technoviking probably had his own personal reasons; he did not want to be famous, and he did not want his image to be distributed on such a massive scale and monetised for commercial purposes. To this day, the dancer's name is not publicly known. In the lawsuit, his legal representative described how the video made his life difficult – for instance, how it cost him his job and how right-wing politicians, who likewise misused his image, approached him. He therefore rejected Fritsch's offer of cooperation and a (legal) sale of the video.

The case raised many questions, particularly regarding the boundary between personality rights and freedom of artistic expression. Can such a phenomenon even be restrained by law? Fritsch's experimental work was a major challenge to reality. It showed how unpredictable the world of the internet is – and that it never forgets.

In private law, the general rule is that one person's freedom ends where another person's freedom begins. The internet is no exception. Likewise, filming passers-by in a public place usually gives rise to a clash between two fundamental human rights – the freedom of artistic creation on the part of the videomaker (Article 15 of the Charter) and the right to protection of the personality of the filmed person (Article 10 of the Charter).

A person being filmed is protected by law if they are recognisable; otherwise they have no right to interfere with the videomaker's artistic work.

Section 84 of the Civil Code provides that capturing a person's likeness in any way that makes it possible to identify them from the depiction is permitted only with their consent. Similarly, disseminating a person's likeness (for example, typically by publishing videos) is permitted only with their consent. The consent need not be in writing; implied consent is sufficient – for instance, posing in the expectation that the video will be distributed in the usual manner. The Technoviking, however, did not consent to the video being made.

What was Fritsch supposed to do? The Civil Code sets out cases in which consent is not required (so-called gratuitous statutory licences). For street filming, a news (reporting) licence or an artistic licence might come into consideration. However, Fritsch did not use the video in an informational, news context; instead, he took rather the path of the artistic licence. I should note that I deliberately will not debate here the artistic merit of the video he created.

The artistic licence serves to safeguard the special public interest in the development and dissemination of artistic creation. Through this exception, the legislature supports the advancement of art. This exception must be exercised in a proportionate manner and, furthermore, must not conflict with the legitimate interests of the depicted person.

What does this actually mean? The courts infer that a use will be proportionate if its form, scope, content and manner correspond to the purpose of the artistic licence (namely, the development and dissemination of art). In addition, it must not seriously interfere with the personality sphere of the filmed person. The video must not demean the filmed person or undermine their dignity or good reputation – for example, in view of the circumstances under which it was made and published, or in view of the commentary attached to the video. The promotion of the video should not contain defamatory, ridiculing or misleading comments.

If a dispute reaches the courts, it is always for the courts to assess whether the interference with personality rights is still proportionate. They will decide whether, in the given case, to give precedence to the affected person's right to protection of honour and good reputation, or to favour the right to freedom of artistic creation. However, since this is a statutory exception, the possibility of relying on this statutory licence must be interpreted rather restrictively.

Under Czech law, too, it is inferred that using a video for commercial, advertising or similar purposes would go beyond the scope of the statutory licence and would constitute an interference with the protected personal sphere. Here are a few examples in which, according to the courts' conclusions, a captured likeness was used unlawfully for commercial purposes: providing a photograph for a calendar or product catalogue with a view to selling them, using a photograph on the label of a pair of trousers, or using a likeness on an advertising leaflet promoting certain goods.

The videomaker's original intention may not have been profit; but once the video became a viral sensation, the videomaker seized the opportunity and began to make money from it. With statutory licences, proportionality must be monitored (and assessed) at every individual step – that is, with each act of publication (where, how…), but also with each further use of the video (its further promotion at exhibitions, lectures, etc.). Printing on merchandise is already pure commerce. In my view, the videomaker's subsequent steps in handling the video could no longer fulfil the purpose of the artistic licence – the dissemination of art – but rather served to make the video profitable.

I believe that, in this case, the Czech courts too would have prohibited the further publication of the depicted person's likeness, as well as the commercial use of the Technoviking's likeness. After all, the video was made and distributed without the protagonist's consent. The exceptions to the requirement to obtain consent cannot be relied upon for commercial purposes. The more the video is viewed, the more it interferes with the rights of the filmed person, and the less proportionate the interference with the depicted person's rights becomes.

The regional court concluded that the interest of an audience of millions in publication cannot outweigh the legitimate interest of the (one) depicted person.

Although, through litigation, the Technoviking succeeded in having the original video taken down, it is beyond his power to sue everyone who continues to spread his likeness online. Even if the Technoviking now lives a quiet family life and no longer attends techno events, 23 years after the event his children can still find their dancing dad on the internet. The Technoviking was lucky that, in this case, the video does not portray him negatively – on the contrary, it casts him in the role of a confident protector of women.

Once published (regardless of whether unlawfully), videos take on a life of their own on the internet and spread like a virus. It is precisely in light of this problem of the internet that the question of a person's likeness must be given attention from the very outset of the creative process. Last but not least, for cases such as these, the European Union has established the right to be forgotten. How to exercise the right to erasure, and under what conditions, is something we will talk about another time.