Copyright (auteursrecht) in a photograph arises automatically when it is taken, as long as the photo has its own original character and bears the personal stamp of its maker. The photographer holds the rights, unless the photo was made by an employee in the course of employment or published as the work of a company under the Dutch Copyright Act (Auteurswet).
No registration or copyright notice is required. The rights stay with the photographer when others publish, share or reproduce the photo.
Table of contents
Who holds the copyright?
The photographer, as a rule. Two exceptions in the Auteurswet matter in practice.
Under Article 7 Auteurswet, when an employee takes a photo as part of their work, the employer is regarded as the maker, unless they agreed otherwise. Under Article 8 Auteurswet, a company, association or foundation that publishes a work as its own without naming a natural person as maker is regarded as the maker, unless the publication was unlawful.
A freelance photographer is not covered by Article 7. A client who commissions and pays for photos does not acquire the copyright. The client gets what the contract gives it, and if the contract is silent, that is usually no more than a limited right of use.
How can copyright be transferred or licensed?
A transfer requires a deed (akte) signed by the rightsholder, under Article 2 Auteurswet. It covers only the rights stated in the deed or that necessarily follow from its nature and purpose, so a general clause transferring “all rights” is read restrictively.
An exclusive licence must also be in writing under Article 2. Most arrangements work better as a licence: a defined right of use for a defined purpose, medium, territory and period. A new use, such as an advertising campaign, a different medium or a resale, then requires new permission.
What are moral rights?
Moral rights (persoonlijkheidsrechten) stay with the photographer, even after a transfer, under Article 25 Auteurswet. They include the right to be named as the maker and the right to oppose distortion or mutilation that harms the maker’s honour or reputation.
Cropping a photo, placing text over it or changing its colours can engage these rights, even if the user holds a valid licence under Article 2 for the commercial use.
Do you also need consent from the people in the picture?
Often, yes. A person in a photo has portrait rights (portretrecht) under Articles 19 to 21 Auteurswet, separate from the photographer’s copyright.
If the person shown commissioned the portrait, publication requires their consent. If they did not, they can still oppose publication under Article 21 Auteurswet if they have a reasonable interest (redelijk belang), such as privacy, reputational harm or, for well-known people, a commercial interest in their image.
So a photographer may hold the copyright and still not be free to publish, and a business with a licence may still need consent from the people shown. Both questions under the Auteurswet must be answered before an image is used in advertising.
What can you do about unauthorised use?
You can demand that the use stops, claim damages and require removal of the image. Damages are usually based on the licence fee that would have been payable, often with an uplift for a missing name credit; tariff lists are evidence of what is customary, not a binding scale.
Secure evidence first with dated screenshots. Then identify who actually publishes the image (the platform, the advertiser or the agency), because a demand to the wrong party achieves nothing. If no settlement follows, the claim goes to the civil court.
What should you check as a photographer?
- Did you take the photo as an employee (Article 7 Auteurswet) or as a freelancer?
- Does your contract with the client grant a licence or a transfer, and is any transfer in a signed deed?
- Does the licence define purpose, medium, territory and period?
- Do you have consent from the people shown for the intended publication?
- Have you saved dated evidence of any unauthorised use?
What should you check as a business using photos?
- Who is the maker, and do you have a written licence or a signed deed of transfer?
- Does the licence cover your actual use, including advertising and social media?
- Do you name the photographer where the licence or Article 25 requires it?
- Do you have consent from the people shown, especially for commissioned portraits?
- Do you plan to crop or edit the photo in a way the photographer could object to?
What can we do for you with copyright on photos?
We act for photographers and for businesses that use images, as part of our IT lawyer practice.
- We draft and review licence agreements and deeds of transfer.
- We check whether your intended use needs consent under the portrait-rights rules.
- We calculate a reasonable licence fee and damages for unauthorised use.
- We send a cease-and-desist letter to the party actually publishing the image.
- We respond to infringement claims made against your business.
Summary
- Copyright in a photo arises automatically with the photographer, except for employees’ work (Article 7 Auteurswet) and works published by a legal person (Article 8 Auteurswet).
- Paying for photos does not transfer copyright; only a signed deed does (Article 2 Auteurswet), so a licence is usually the better tool.
- Moral rights, such as the right to be named, stay with the photographer (Article 25 Auteurswet).
- People shown in a photo have their own portrait rights (Articles 19 to 21 Auteurswet).
- Unauthorised use can be stopped and compensated; send the claim to the party actually publishing the image.
Frequently asked questions
Do I own the copyright if I paid a photographer?
No. Payment does not transfer copyright. You only get the rights stated in the contract; a transfer requires a deed signed by the photographer under Article 2 Auteurswet.
Can I use a photo I found online if I credit the photographer?
No. A credit does not replace permission. Without a licence from the rightsholder, publication infringes the copyright, even with a name credit.
Can someone in a photo stop me from publishing it?
Sometimes. For a commissioned portrait you need their consent. Otherwise they can object under Article 21 Auteurswet if they have a reasonable interest, such as privacy or reputational harm.
