Copyright on photos

Copyright (auteursrecht) in a photograph arises automatically, at the moment it is taken, provided the photograph has its own original character and bears the personal stamp of its maker. No registration, notice or other formality is required. The photographer is the author and holds the rights, and that remains so when the photograph is published, shared or reproduced by others.

Who holds the copyright?

The photographer, as a rule. Two exceptions matter under the Dutch Copyright Act (Auteurswet).

Where a photograph is made by an employee in the performance of his duties, the employer is deemed to be the author and holds the rights (article 7 Auteurswet). Where a work is published as the work of a legal person – a company, association or foundation – without naming a natural person as author, that legal person is regarded as the author, unless it is shown that the publication was unlawful in the circumstances (article 8 Auteurswet).

A freelance photographer is not covered by the employment exception. A client who commissions photographs does not acquire the copyright by paying for them; the client acquires what the contract gives it, and if the contract is silent, that is usually no more than a limited right of use.

Can copyright be transferred?

Yes, but only by a deed (akte) – a written instrument signed by the rightsholder – and the transfer covers only what the deed states or necessarily follows from it (article 2 Auteurswet). A general clause purporting to transfer all rights in everything is read restrictively.

Most arrangements are better handled as licences: a defined right of use, for a defined purpose, medium, territory and period. Where a client wants to use images in ways not originally contemplated – a campaign, a different medium, a resale – that is a new question, and the licence is where the answer should already be.

What are moral rights?

Alongside the economic rights, the photographer retains moral rights (persoonlijkheidsrechten), which cannot be transferred (article 25 Auteurswet). They include the right to be named as the maker and the right to oppose distortion or mutilation of the work that would harm the maker’s honour or reputation.

Cropping a photograph, adding text over it or altering its colour can engage those rights even where the user holds a valid licence for the economic use of the image.

Do you also need the consent of the people in the picture?

Copyright is not the only right involved. A person depicted has portrait rights (portretrecht) under articles 19 and 21 of the Auteurswet.

Where a photograph was commissioned by the person shown, publication requires that person’s consent, in principle for every use (article 19 Auteurswet). Where it was not commissioned by them, they can still oppose publication if they have a reasonable interest (redelijk belang) in doing so, such as privacy, a commercial interest, or the risk of reputational harm (article 21 Auteurswet). Commercial exploitation of the image of someone with marketable popularity is a separate, well-established ground for such an interest.

So a photographer may hold the copyright and still not be free to publish, and a business with a licence from the photographer may still need consent from the people shown. Both questions have to be answered before an image is used in advertising.

What can you do about unauthorised use?

Where a photograph is used without permission, the maker can require the use to cease, claim damages, and require the image to be removed from the medium in which it appeared. Damages are commonly calculated on the licence fee that would have been payable, and an uplift is often claimed for the absence of a name credit. Published tariff lists are evidence of what is customary, not a binding scale, and courts assess what is reasonable in the case before them.

Practical steps matter more than the legal theory: secure evidence of the use with dated screenshots before writing, and identify who is actually publishing the image – the platform, the advertiser or the agency – because a demand sent to the wrong party achieves nothing.

Summary

• Copyright in a photograph arises automatically with the person who took it, unless it was made by an employee in the course of employment (article 7 Auteurswet) or published as the work of a legal person (article 8 Auteurswet).
• Commissioning and paying for photographs does not transfer copyright; only a signed deed does that (article 2 Auteurswet), so most arrangements are better set up as a licence.
• Moral rights, such as the right to be named and the right to oppose distortion, stay with the photographer even after a transfer (article 25 Auteurswet).
• The people shown in a photograph have their own portrait rights, separate from copyright (articles 19 and 21 Auteurswet).
• Unauthorised use can be stopped and compensated, but the claim should go to the party actually publishing the image, backed by dated evidence.

We advise photographers and users of images on licences, on commissioning agreements, and on infringement, and we act in both directions.

Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.

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