What portrait right protects, and what it does not
A portrait in the sense of the Copyright Act is any depiction of a person’s face, whether or not the rest of the body is visible, in any medium: a photograph, a film, a drawing, a painting, a sculpture or a computer-generated image. The test is recognisability, and it is applied objectively: the question is whether the person can be recognised by those who know them. A distinctive tattoo, a hairstyle, a uniform, a wheelchair or the setting of the image can be enough even where the face is obscured.Portrait right attaches only to publication, not to the taking of the image. Photographing in a public place is in principle lawful, and keeping a picture in your own collection raises no issue under the Copyright Act. What triggers the right is making the image public: posting it, printing it, broadcasting it, putting it on a website or using it in a campaign. Sharing within a genuinely private circle is not publication, but the boundary is thin: a post visible to several hundred contacts on a social network is normally treated as public.Three rights are frequently confused, and separating them clarifies most questions. Copyright belongs to the maker of the image and lasts until seventy years after their death. Portrait right belongs to the person depicted and can be invoked after their death by close relatives for a period of ten years. Data protection law applies in parallel, because a photograph in which a person can be identified is personal data under the General Data Protection Regulation (GDPR, in Dutch the AVG). A photograph is not automatically biometric data: it becomes so only when it is processed by specific technical means allowing the unique identification of a person, such as facial recognition, which brings the far stricter regime of article 9 GDPR into play. Our page on publication and portrait rights sets out the interaction in more detail.Commissioned and non-commissioned portraits
The Copyright Act draws one distinction that determines which rule applies, and it is the distinction most often missed. A portrait made on commission of the person portrayed, or on behalf of someone else at that person’s request, is governed by articles 19 and 20. There, consent genuinely is the rule: the maker may not publish the portrait without the permission of the person portrayed, and after their death the permission of their relatives is required for ten years. A wedding photographer who wants to use images in a portfolio, or a studio that wants to use a company headshot in its advertising, needs that permission.A portrait made without such a commission falls under article 21. Here there is no consent requirement at all. Publication is unlawful only in so far as a reasonable interest of the person portrayed, or after their death of a relative, opposes it. Street photography, press photography, images taken at an event and pictures of people in a public space all fall into this category, and the outcome depends entirely on the balancing exercise described below.The distinction is not about who pressed the shutter or who paid, but about whether the portrait was made pursuant to an assignment given by or on behalf of the person portrayed. A company photographer taking pictures at a staff event is not working on the commission of each employee shown, so those images fall under article 21 rather than article 20.The reasonable interest test
Under article 21 the court weighs the interest of the person portrayed against the freedom of expression and information of the publisher, protected by article 10 of the European Convention on Human Rights and article 7 of the Dutch Constitution. Neither right takes precedence in the abstract; the outcome depends on the circumstances of the individual publication. Two categories of interest are recognised.The first is a privacy interest. Respect for private life under article 8 of the Convention weighs heavily where the image shows someone in a private situation, in a medical or judicial context, at a demonstration, or in a way that damages their reputation or safety. The manner of publication matters as much as the image itself: the same photograph can be lawful in a news report and unlawful in a headline that suggests wrongdoing. Where a person is the subject of a matter of genuine public debate, and particularly where they hold public office, the balance shifts towards publication.The second is a commercial interest. Dutch case law recognises that a person whose popularity can be turned into money has a reasonable interest in sharing in the proceeds when their image is used commercially, a principle established by the Supreme Court in the Cruijff case of 2013. Purely commercial use of someone’s image without permission, in advertising, on merchandise or in a sponsored post, therefore almost always fails the test, and the usual measure of damages is the fee that would reasonably have been charged for a licence. Non-material damages can be awarded in addition where the publication was distressing.Two practical points follow. Publishing a photograph in a news context is not automatically lawful: the question is whether showing the face contributes to the report. And a house rule, a sign at the entrance to an event or a clause in general terms and conditions does not remove the statutory right; it can be evidence that consent was given, but it cannot replace the balancing test.Consent, model releases and data protection
Where consent is required, or simply advisable, record it. A model release should state who is portrayed, which images it covers, for which purposes and media, in which territories and for how long, whether a fee is payable, and whether the images may be edited or transferred to third parties. Consent obtained for one campaign does not extend to the next one, and consent given for editorial use does not cover advertising.Under data protection law the analysis is separate and runs in parallel. Publishing a recognisable photograph is processing of personal data and needs a lawful basis under article 6 GDPR. Consent is one option, but it must be freely given, specific and revocable, which makes it unreliable in an employment context, where the dependence between the parties means it is rarely free. A legitimate interest is often the sounder basis for ordinary corporate communications, provided the purpose is documented and the person can object. Purely personal or household use falls outside the GDPR altogether, and processing for journalistic purposes is largely exempted by the Dutch GDPR Implementation Act.Two obligations are easy to overlook. The person portrayed has a right of access and a right to erasure, so an organisation needs to know where its image files are and how long it keeps them. And withdrawal of GDPR consent does not automatically undo a contractual release: the two operate independently, which is why the release should say what happens if permission is withdrawn. Our privacy lawyers advise on both sides of that question.Children, groups and people who have died
For a child under sixteen, consent is given by the parents or legal guardian; from the age of sixteen the young person can normally decide for themselves, and sixteen is also the age at which a young person can consent to an online service in their own right in the Netherlands. Beyond consent, the interest of the child weighs heavily in the balancing test: images of identifiable children in a school, sports or medical setting are treated with particular caution, and publication in an advertising context without the consent of the parents will regularly be unlawful.Being one face among many does not remove the right. Each person who is individually recognisable can invoke portrait right, even in a crowd. What changes is the balance: in a genuine overview shot of a public event, where no individual is singled out, a reasonable interest opposing publication will rarely be established. The position is different where an individual is cropped out, put in the foreground or used to illustrate a story about them.After a death, close relatives may invoke portrait right for ten years. Article 25a of the Copyright Act identifies who they are: the parents, the spouse or registered partner and the children, each of whom may act independently. This matters for archive photographs, commemorative publications and documentaries, where the interest of the relatives is weighed against the historical or journalistic value of the material.Deepfakes, AI likenesses and images that are also criminal
A manipulated or generated image is still a portrait if the person is recognisable, so portrait right applies to a deepfake video, a synthetic voice-and-face clip and an AI-generated headshot in exactly the same way as to a photograph. Because such material is by definition not made on commission, article 21 governs, and the reasonable interest of the person portrayed will almost always outweigh the interest in publishing an image that suggests they said or did something they did not.Two further regimes have become relevant. The European Artificial Intelligence Act imposes transparency obligations on those who generate or manipulate image, audio or video content that appreciably resembles real persons: such content must be disclosed as artificially generated or manipulated. Those transparency provisions are already in application, unlike parts of the Act concerning high-risk systems, which have been postponed.Where the material is sexual, the matter is criminal as well as civil. The unauthorised making, possession or dissemination of sexual images of another person is an offence under article 139h of the Criminal Code (Wetboek van Strafrecht), and it covers manipulated images. The Sexual Offences Act (Wet seksuele misdrijven), in force since 1 July 2024, has broadened criminal liability in this field further. In these cases a report to the police and a civil claim run in parallel, and the civil route is usually the faster way to have material removed.Enforcing your portrait right
Start by securing the evidence, because material disappears once you complain. Save the page, the image file and the address at which it was published, record the date, and keep any correspondence. Where the scale of the publication matters for the damages claim, a bailiff can draw up an official record of what was online at a given moment.The first step is a written demand to the publisher: identify the image, state that it infringes your portrait right, require removal within a short and specific period, and reserve your right to damages. If the image sits on a platform rather than a website of its own, use the notice mechanism the platform is required to provide under the Digital Services Act, and note that a hosting provider that fails to act promptly once it knows the content is unlawful loses its exemption from liability.If that does not work, the civil route is available. In summary proceedings before the provisional relief judge (kort geding) an order to remove the image and to refrain from further publication can be obtained quickly, in urgent cases within days, and is normally reinforced by a penalty payment (dwangsom) for each day of non-compliance. Proceedings on the merits are needed for damages, which are based on article 6:162 of the Civil Code and can include the licence fee that should have been paid and compensation for non-material loss. A rectification can also be ordered. Court fees are set by statute and revised annually, and the costs order in an ordinary case follows the standard scale, which recovers only part of a legal bill; the full cost recovery available in intellectual property cases is generally not applied to a claim resting on portrait right alone. A claim for damages is subject to the five-year limitation period of article 3:310 BW.For cross-border publications, note that the European rules on the law applicable to non-contractual obligations expressly exclude violations of privacy and rights relating to personality, so the applicable law is determined by Dutch private international law rather than by that regulation. Jurisdiction within the European Union does follow the Brussels I bis Regulation, which allows a claim to be brought where the publisher is established or, for the damage occurring there, in the country where the person affected has their centre of interests.Publishing safely: what to check before you post
Organisations that use images of people commercially can avoid almost all of these disputes with a short internal routine. Ask first whether the person is recognisable, then whether the portrait was made on commission, then what the use is: editorial, informative or commercial. Commercial use requires permission in practice, whatever the strict legal analysis, because the commercial interest of the person portrayed will otherwise prevail.Check the paperwork rather than assuming it exists. Stock images come with model releases that often exclude sensitive or political contexts and sometimes exclude advertising altogether. An image that is free of copyright can still infringe portrait right, because the two rights are held by different people and expire at different times. Photographs of staff need a basis under data protection law and a clear arrangement about what happens when the employee leaves. Keep the release, the image and the record of the lawful basis together, so that a complaint can be answered on the same day it arrives.Frequently asked questions about portrait right
Below are the questions our private clients ask most often.Is street photography legal?
Taking photographs in a public place is lawful in the Netherlands. Publication is a separate question: for a portrait not made on commission, article 21 of the Copyright Act makes publication unlawful only in so far as a reasonable interest of the person portrayed opposes it, weighed against freedom of expression.
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?
You need permission from the maker, because the copyright in the photograph belongs to that person. For the person portrayed, publication is unlawful if a reasonable interest opposes it, so ask for consent whenever the use is commercial or the image is sensitive.
Do influencers need extra permission?
Absolutely—sponsored posts are advertising, so get a signed model release before any face appears beside a brand.
