You scroll through Instagram and freeze: your face smiles from a clothing ad you never approved. That gut-punch is exactly what Dutch portrait right is designed to stop. In one sentence: it is the legal power every identifiable person in the Netherlands has to allow or forbid publication of a recognizable image of themselves.
Because an unauthorised photo can dent your reputation, erode privacy, and drain potential licensing fees, knowing the rules is more than theory—it’s self-defence. Rooted in Articles 19–21 of the Dutch Copyright Act and sharpened by privacy and publicity concerns, portrait right answers the questions of consent, “reasonable interest”, and remedy. This guide walks you through the essentials: clear definitions, consent checklists, the balancing test, proactive safeguards, enforcement options, quick FAQs, and common pitfalls. Let’s give your image the protection the law already promises.
Understanding Portrait Right at a Glance
Portrait right (portretrecht) hands you the steering wheel over any image in which you are recognizable. That recognition can come from a clear face, a trademark hairstyle, voice, or even a familiar location. The rule operates independently from the photographer’s own copyright; it targets publication, not creation.
Legal Origin in the Dutch Copyright Act (Articles 19–21)
Articles 19–21 of the Auteurswet bar publication of a recognizable portrait without the subject’s consent unless a statutory exception kicks in. When conflict erupts, judges weigh the maker’s freedom of expression against the portrayed person’s “reasonable interest.” The photographer keeps copyright, but portrait right can still block use.
Difference Between Portrait Right, Copyright, and Privacy
At a glance:
- Portrait right – held by the person depicted; expires 10 years after death; remedies include injunction and damages.
- Copyright – held by the creator; lasts 70 years post-mortem; remedies include royalties and seizure.
- Privacy (GDPR) – governs processing of personal data in images; demands lawful basis, transparency, and minimisation.
Portraits Covered: Photos, Video, Drawings, Deepfakes, and AI Likeness
Format is irrelevant. Selfies, CCTV grabs, wedding videos, charcoal sketches, 3-D avatars, deep-fake clips, or AI-generated headshots all qualify if viewers can say “that’s you.” Even partially masked shots count when a tattoo, outfit, or setting makes identification obvious.
When Does Portrait Right Apply?
Portrait right only surfaces when two boxes are ticked:
- The portrayed person can reasonably be recognized, and
- The image is published—shown beyond the private circle, whether online, on TV, or in a brochure.
Keeping a photo on your phone is harmless; pressing “post” wakes the statute.
Requirements for a “Recognizable” Portrayal
Recognition is judged objectively. A full-face selfie is obvious, but so is a blurred shot featuring a unique tattoo, uniform, or setting that lets viewers connect the dots. If outsiders can say “that’s Chris,” rights arise.
Individuals Versus Groups
Group photos don’t dilute individual claims. Each identifiable person may object, even if they’re one face in a crowd. Event organizers often use entrance notices to seek blanket consent, yet those signs rarely override statutory protection.
Special Rules for Minors and Deceased Persons
For minors, parents or legal guardians must grant permission; teens aged 16–18 may co-sign. After death, heirs can invoke portrait right for ten years, safeguarding legacy portraits against unwanted exposure.
Consent and Publication Rules
Before you hit “publish,” pause: the safest way to stay on the right side of Dutch portrait right is to secure permission from the person in the frame. Consent is not a courtesy; it is the legal firewall that spares you takedown demands, damage claims, and public backlash.
Dutch law focuses on publication, not shutter-clicking. Even images taken lawfully on a public street can trigger liability once they appear in a campaign, blog post, or TikTok video. Clear, provable consent shifts the risk away from you and narrows any later dispute to whether the use stayed within the agreed scope.
Commercial Versus Editorial/Creative Use
Advertising, sponsorships, merchandise, and influencer placements fall under “commercial” use. Courts treat these as an implicit endorsement, so missing consent almost always breaches portrait right. Editorial or artistic uses—news reports, documentaries, exhibitions—get more leeway, yet the “reasonable interest” test still applies. A museum catalog may pass; a product brochure likely won’t.
Written, Verbal, and Implied Consent—What Stands Up in Court?
Evidence reigns.
- Written model release: gold standard; defines purpose, media, duration, territory.
- Verbal consent: acceptable but harder to prove; record it if possible.
- Implied consent: limited to obvious contexts (posing in a photo booth); unsafe for commercial exploitation.
Good Practice: Model Releases and GDPR Compliance
A solid release covers purpose, compensation, right to revoke, moral-rights waiver, and worldwide digital use. Store the document with the original image files for easy retrieval. Because photographs are personal data, also document your GDPR lawful basis, retention term, and security measures. Tick both boxes—portrait right and privacy law—and publication becomes a non-issue.
The “Reasonable Interest” Test in Dutch Law
Portrait right cases in Dutch courts usually turn on the “reasonable interest” (redelijk belang) test in Article 21. Judges weigh the publisher’s freedom of expression against legitimate interests of the person depicted. If the latter prevails, publication must cease and damages follow.
Personal Interests (Privacy, Reputation, Safety)
Privacy tops the list: a teacher caught partying, a protester fearing retaliation, or a patient leaving a clinic may block exposure. Courts weigh reputational harm and safety; witness-protection participants or minors almost always succeed. Even plain embarrassment can qualify when the photo amplifies it.
Commercial Interests (Endorsement, Image Exploitation)
Money matters too. If your face lands on sneakers or a sponsored TikTok without sign-off, you have a commercial interest. Courts peg damages to normal endorsement rates and can order the infringer to surrender profit when misuse was deliberate.
Public Interest and Freedom of Expression as Counterweights
Publishers can still win. Journalism, art, satire, or historic reporting may outweigh objections when the image truly serves public debate. Judges ask: is showing the face necessary and proportionate, is the aim informative not promotional? If so, freedom of expression takes priority.
How to Protect Your Portrait Right Proactively
Waiting until your photo is already everywhere means you start the fight uphill. A little vigilance and paperwork up front keeps costs down and leverage high. The quick moves below let you steer your portrait right instead of chasing it.
Monitoring Your Image Online and Offline
Set Google Alerts for your name plus “image,” and run periodic reverse-image searches with TinEye or Lens. For offline use, skim brochures, trade-fair stands, and local press. Professional monitoring services can track larger campaigns and send early warnings.
Cease-and-Desist Letters and Takedown Requests
When you spot misuse, move fast. A concise cease-and-desist letter should: identify the infringing image, assert your portrait right, demand immediate removal, and reserve damages. Give a hard deadline—48 or 72 hours—and mention escalation to summary proceedings if ignored. Most publishers fold.
Negotiating Licenses and Compensation Beforehand
Better yet, monetise your likeness before anyone else does. Negotiate written licences that set the fee, media, territory, and term; insist on prior approval for new uses. Benchmark rates against advertising budgets, influencer packages, or union guidelines to avoid leaving money on the table.
Enforcing Your Rights in the Netherlands
When a polite takedown request goes nowhere, Dutch law gives you real teeth. You can sue in the civil courts that handle copyright and press matters, ask for lightning-fast interim relief, or claim cash compensation—all under the same banner of portrait right protection.
Civil Procedures: Injunction, Damages, Rectification
A standard action starts with a writ of summons served by a bailiff. You may ask the court to:
- ban further publication (injunction),
- order payment of a reasonable licence fee plus immaterial damages,
- force a public rectification or apology,
- reimburse your legal costs (Art. 1019h Rv tariff for IP cases).
Proceedings take several months, and judgments are enforceable throughout the EU under Brussels I bis.
Emergency Relief Through Summary Proceedings (Kort Geding)
If the image is spreading fast, file a kort geding. Hearings can occur within a week; judges grant or refuse an interim injunction on the spot. Although temporary, these orders carry hefty penalty payments (dwangsom) for non-compliance and often push parties toward settlement.
Evidence Gathering: Screenshots, Notarization, Witness Statements
Solid proof secures victory. Capture dated screenshots, URLs, and page source codes. Use a bailiff or notary to create an Internet Evidence Report for authenticity. Eyewitness statements, server logs, and ad-spend invoices further illustrate scope, profit, and intent behind the infringement.
Frequently Asked Questions About Portrait Right
Below are lightning-round answers to the questions clients fire at us most.
Is Street Photography Legal?
Snapping pictures in public places is lawful, but publishing recognizable faces requires consent unless it’s true news.
What if I’m in a Crowd Scene?
A broad crowd shot rarely infringes; portrait right kicks in only when viewers can pick you out individually.
Can I Post Someone Else’s Photo on Social Media?
Posting demands the photographer’s okay and the subject’s approval; missing either risks takedown requests and damages.
Do Influencers Need Extra Permission?
Absolutely—sponsored posts are advertising, so get a signed model release before any face appears beside a brand.
Mistakes to Avoid for Businesses and Creators
Even seasoned marketers stumble over portrait right. Sidestep the usual trip-wires listed below and you’ll spare yourself cease-and-desist headaches and unplanned legal bills.
Using Stock Without Checking Model Releases
Grabbing stock imagery is not risk-free. Confirm the attached model release covers commercial use across all channels.
Assuming “Public Domain” Equals Free Use
An image can be copyright-free yet still violate someone’s portrait right. Always double-check recognizability and secure consent.
Relying Solely on Disclaimers in Terms & Conditions
A door sign or website disclaimer won’t override statutory rights. Obtain explicit permission; courts ignore one-sided small print.
Related Concepts: Right of Publicity, Personality Rights, and Image Rights Abroad
Portrait right is not an island; similar doctrines worldwide govern where and how you publish someone’s likeness. Knowing the differences avoids nasty—and costly—surprises across borders.
How Dutch Portrait Right Compares to US Right of Publicity
The Netherlands has a statute with a ten-year post-mortem tail. Most US states rely on judge-made or state statutes, can be transferable, and allow punitive damages—so claims may explode financially.
Cross-Border Publications and Jurisdiction Pitfalls
Publish one photo online and it can be viewed everywhere; yet liability is decided country by country. Use geo-blocking or territory-specific licences to limit unexpected forum shopping.
Enforcement Within the EU: Rome II and Brussels I bis
Inside the EU you may sue either where the publisher is established or where the harm occurs. Rome II chooses Dutch law for Dutch claimants; Brussels I bis makes judgments portable.
Key Takeaways on Safeguarding Your Image
Know when Dutch portrait right triggers, lock in written consent before publishing, weigh “reasonable interest,” monitor the web, and strike quickly with takedowns or injunctions. Still unsure or facing misuse? Reach out to Law & More for tailored, swift legal backup.