Portrait rights: when may you publish a photo of someone?

Publishing a photo of a recognisable person involves two separate rights: the photographer’s copyright and the portrait right (portretrecht) of the person shown. Under the Dutch Copyright Act (Auteurswet), a commissioned portrait may only be published with the consent of the person portrayed; a non-commissioned portrait may be published unless that person has a reasonable interest (redelijk belang) against it.

The most common reasonable interest is privacy. For people whose popularity has market value, a commercial interest in their image can also be enough.

What is a portrait right?

The portrait right is part of the Auteurswet, which treats commissioned portraits (Articles 19 and 20) and non-commissioned portraits (Article 21) differently. The law describes a portrait as an image of a person’s face, with or without other parts of the body, made in any way.

“Made in any way” means a photograph, a painting, a television broadcast or a caricature can all be a portrait. Dutch case law of the Supreme Court (Hoge Raad) makes recognisability decisive: a person is portrayed once they can be recognised, whether from their face, a distinctive posture, a hairstyle or their surroundings.

When is your portrait right violated?

When you are recognisable in a published image and the publication lacks the required consent or harms your reasonable interest. What applies depends on whether the portrait was commissioned.

If you commissioned the portrait, the photographer holds the copyright but needs your consent to publish it. The reverse also applies: you may use the portrait privately, but to publish it yourself you generally need the photographer’s permission, because the copyright is theirs.

What counts as a reasonable interest?

Under Article 21 of the Copyright Act, a non-commissioned portrait may in principle be published, but not if and to the extent that the person portrayed has a reasonable interest against it. The court then weighs that interest against the freedom of expression of the photographer and the publisher.

Privacy is the interest relied on most. Reputational harm also counts, for example when an image suggests involvement in something the person had nothing to do with.

Dutch case law also recognises that the commercial value of a person’s popularity can be a reasonable interest under Article 21, so their image cannot be used commercially without consent. Well-known athletes and artists typically charge a fee for such use, for example through sponsorship.

This protection is not limited to celebrities. In an older case, amateur boxer Arnold Vanderlyde successfully relied on his portrait right after a magazine published by Spaarnestad used his image without permission or payment; the Supreme Court held that an amateur can also exploit popularity once it has market value.

What can you do about a violation?

You can demand that publication stops and claim compensation, starting with a cease-and-desist letter. If that fails, summary proceedings (kort geding) before the preliminary relief judge of the district court can lead to a quick ban on further publication.

Depending on the case, the court can also order existing copies to be withdrawn (a recall), usually combined with a claim for damages. In addition, the Auteurswet makes publicly displaying a portrait without being entitled to do so a criminal offence, punishable with a fine.

Compensation for privacy harm is usually modest. In a case against De Volkskrant, which put a recognisable photo of a man on its front page next to the headline “Is Schiphol still safe?”, the Amsterdam preliminary relief judge awarded him €1,500 as an advance on non-material damages (ECLI:NL:RBAMS:2016:5786). The Amsterdam Court of Appeal upheld that ruling (ECLI:NL:GHAMS:2017:3247).

The lesson is that context matters as much as the image: a photo taken in a public place can still be unlawful when combined with a misleading headline. Where a commercial interest is involved, compensation is based on what comparable use of the image would normally cost, and can be considerably higher.

What should you check as the person portrayed?

• Are you recognisable in the image, from your face, posture or surroundings?
• Did you commission the portrait (Articles 19 and 20) or not (Article 21 Auteurswet)?
• Does the publication harm your privacy or reputation, for example through a caption or headline?
• Does your image have commercial value that the publisher is using without paying?
• Have you saved dated screenshots and the details of the publisher?

What should you check as a publisher or photographer?

• Is the person recognisable, and was the portrait commissioned by them?
• Do you have written consent covering this specific use, including advertising?
• Does the caption or headline suggest anything about the person that is untrue or unflattering?
• Is the use commercial, so that the person may expect a fee?
• Do you hold the copyright, or a licence from the photographer?

What can we do for you with portrait rights?

We act for people portrayed, photographers and publishers as part of our IT lawyer practice.

• We assess whether a publication infringes the portrait right under Articles 20 and 21 Auteurswet.
• We draft a cease-and-desist letter to the party responsible for the publication.
• We start summary proceedings for a publication ban or recall.
• We calculate a claim for damages or a reasonable fee for commercial use.
• We draft consent forms and model releases for photographers and businesses.

Summary

• Copyright belongs to the photographer; the portrait right belongs to the person shown.
• A commissioned portrait needs the consent of the person portrayed before publication (Articles 19 and 20 Auteurswet).
• A non-commissioned portrait may be published unless a reasonable interest, such as privacy or commercial value, opposes it (Article 21 Auteurswet).
• Amateur athletes and other less well-known people can also rely on a commercial interest once their popularity has market value.
• Violations can lead to a ban, a recall, compensation, or a criminal fine under the Auteurswet.

Frequently asked questions