Image rights

What if you appear in a photo you never gave permission for? What if your child has been photographed without being asked and is used in an advertisement? Or if, as a (former) employee, you appear on the company’s website? Or the reverse: you have written an article and want to illustrate it with a photograph? What about agreements between a model and a photographer? What are your rights and obligations, and what should you look out for?

Image rights (in Dutch: portretrecht) determine when an image of a person may be used or published. You can object to the publication of a non-commissioned portrait if you have a legitimate interest. That legitimate interest may be a moral interest (for example the right to privacy), or a commercial interest. We advise on what is and is not allowed, and we take action in the event of an infringement of your image rights.

Are you the one using someone else’s image, in a campaign, a recruitment drive or a corporate film? Then read on at image rights for businesses.

Introduction: what is a portrait?

A portrait is a recognisable depiction of a person (the person portrayed). It does not matter whether that image was photographed, filmed, painted, drawn or, for example, given 3D form. Even part of a person (half a face, say) during a live TV broadcast can be a portrait, as can (large) groups of people, as long as the individuals have been depicted recognisably.

So what does recognisable mean? That people who know you might be able to recognise you. Various elements can play a role here, such as a characteristic posture, hairstyle, movement and even caricatures or images of lookalikes.

A few years ago there was a Jumbo advertisement on TV in which Max Verstappen delivers groceries in his Formula 1 car. Picnic made its own version of this advertisement, in which a Verstappen lookalike delivers the groceries in a Picnic van. Verstappen considered this an infringement of his image rights.
A number of court cases followed, centring on the question of whether the lookalike Verstappen is a portrait. The answer to that question is: yes. The recognisability does, however, have to be reinforced by something else, for example the clothing, the make-up or the context in which the image is used. For the question of whether there is a portrait, it makes no difference that the clip is a parody.

That did not end the case, incidentally. The Supreme Court answered only the question of whether there was a portrait, and referred the case on for the question that comes next: did Verstappen have a legitimate interest in objecting to this clip? The fact that something is a parody has no bearing on whether it is a portrait, but it can weigh in that balancing exercise.

“Even a lookalike of a person can be a portrait.”

Another example is a case in which a woman at a naturist campsite was photographed without permission, from a distance and from the side. She later saw herself in a flyer for the campsite. The court held that, because of her recognisable posture, there was a portrait, since the people around her would be able to recognise her. This might be different, for example, where a face is blurred (or has a black bar or blocks over it) and it cannot be told from the posture and clothing who is involved; then there is no portrait and you have no image rights either.

What falls under image rights and what use is it to me?

If someone makes a photo, film, painting or other image of you and you are recognisable in it, that person is not simply allowed to do anything they like with that portrait. Image rights give the person portrayed the right, in certain cases, to object to publication of his or her portrait. The cases in which this is possible are discussed below.

Do you have to pay for image rights?

Image rights cost nothing at all and arise automatically. You do not have to register your portrait anywhere, as long as you are recognisable in it.

I asked a photographer to take a photo of me. May that person now use this photo somewhere?

If you give someone, for example a photographer, an assignment to take a photo of you, we are dealing with a ‘commissioned portrait’. With commissioned portraits you must always give permission to the maker of the portrait (for example the photographer, or any other person such as the publisher) to have the portrait published. Where several people are portrayed in a photo, permission is needed from each of them to publish the photo. You can give permission orally, but it is far safer to record it in writing, by email or in a contract.

Please note! Giving permission to have a portrait made is not the same as giving permission to publish a portrait. For example, your employer may have placed photos of you on the website and/or social media for marketing purposes without permission. Even if you appear posing in a photo from a staff party, that does not mean the employer may do anything it likes with it.

I did not give permission to have my photo published, but the photographer does it anyway. What can I do?

If a commissioned portrait is published without your permission, that is both a breach of contract and an infringement of your image rights. The infringer, for example the photographer, is obliged to compensate you for the loss you have suffered. Later in this article we set out the ways in which you can deal with this.

I appear in a photo taken by a photographer. May I place the photo anywhere?

If you appear in a photo that was commissioned, you may not simply do anything you like with it purely because you hold the image rights. The person who takes a photo often holds the ‘copyright’ in his or her work. This means that if you want to make your own portrait public, for example by placing it online, the photographer (the copyright holder in the photo) must give permission for this. As already mentioned, it is wise to make arrangements about this and to record that permission in writing. Read more about copyright law.

What else may I do with a photo of myself taken by someone else?

As the person portrayed, you always have the right to copy the portrait, draw it, save it on your phone or laptop or print it (this is called ‘reproducing’). For this you do not need permission from the maker of the portrait, for example for private use. Here too, though, if several people appear in the portrait, everyone must give permission for the reproduction.

Where a photo of you has been commissioned, you may also, without the photographer’s permission, offer it to newspapers, magazines, TV news programmes and websites so that they publish the photo. If the name of the photographer is given with or on the original photo, then the name of the photographer must also be given with or on the photo in the (press) publication.

Does a commissioned portrait have to be a literally given assignment? No. A portrait can also have been commissioned if the portrait was made ‘(partly) for the benefit of’ you. For example, a news article next to which you want to place your own photo for promotional purposes. In that case you had an interest in the creation of the photo.

Someone has taken a photo of me in public without permission and put it online. Is this allowed?

Where someone takes a photo of you without your being aware of it or without any assignment having been given for it, we are dealing with a ’non-commissioned portrait’. Many portraits are not commissioned, such as photography or video in journalism (street interviews, for example) and event photography (such as the crowd at a football match).

The maker may publish these portraits, unless you, as the person portrayed, have a ’legitimate interest’ in objecting to the publication.

 

What is a ’legitimate interest’?

You can object to the publication of a non-commissioned portrait if you have a legitimate interest. That legitimate interest may be a moral interest (for example the right to privacy) or a commercial interest, where your interest in being able to earn money from the publication is so great that the portrait may not be published. A privacy interest and a financial/commercial interest are the most common.

It is not always straightforward to know when you have a legitimate interest. For this, a ‘balancing of interests’ has to be carried out between the (fundamental) right to freedom of expression of the person who, for example, takes the photo, and the (fundamental) right to private life of the person portrayed. Questions you can ask here are: what kind of photo is it (in a bikini on the beach, or even a nude photo?), where is the photo placed (in a local paper or an international magazine, online?) and in what context (with a serious news item or as satire?).

Privacy interest

Circumstances that can give the person portrayed a legitimate privacy interest include, for example, that an association is created with a particular product, service, faith, sexuality and so on. An example of this is a court case from 1997. A young man worked as a professional dancer at a gay disco in Amsterdam. He then found a half-naked photograph of himself in an advertisement in the Dutch magazine Gaykrant. The dancer stated that he was not gay and feared being associated with the gay scene. The Supreme Court (the highest court) ruled at the time that anyone who sees themselves in a commercial advertisement in principle has a legitimate interest in objecting to it, in this case a privacy interest.

This case has also had the effect that, as an advertiser, you have to be even more careful. It is wise to make clear written arrangements with the person portrayed from which their permission for further commercial use, such as advertising, is apparent. If permission has been given explicitly, then the person portrayed can of course no longer object to publication on the ground of a legitimate interest (unless there is a departure from the arrangements made). What such an arrangement should contain is set out on image rights for businesses.

Commercial interest

A commercial interest typically arises in advertising or merchandising, think of bed linen or card games featuring a well-known artist, musician or athlete. Well-known figures have what Dutch case law calls verzilverbare populariteit: popularity with a commercial value that can be cashed in. Would you like to know more about this and whether, as a well-known person, you can earn money from your portrait? Get in touch and we will talk you through it.
Keep an eye on our website for developments on when you have a legitimate interest in objecting to publication of a portrait and on the use of portraits in advertising.

Can I prohibit someone from using a photo of me in a publication? If so, how?

Where there may be what is called an infringement of image rights (you did not give permission for publication, or you have a legitimate interest in objecting to publication), you can prohibit someone from placing your portrait somewhere, or from having placed it and keeping it there in the future.
Below are a number of ways to tackle this.

• If the portrait has not yet been published:
  • Demand in a letter that the publication be stopped. Read more about the injunction to stop publication.
• If the portrait has been published:
  • Cease-and-desist letter: a formal demand that the infringement of your image rights stops immediately, for example by taking a photo offline or withdrawing a book or magazine from sale. It is important to set out in this letter why there is an infringement of image rights and exactly which demands you are making, so that no further discussion can arise about this later.
  • Cease-and-desist undertaking (this can be attached to the cease-and-desist letter): this is a declaration that the person infringing your image rights will stop infringing them, for example by taking the photo in question off the internet. Other obligations are often included in this declaration too, such as providing information, paying damages, any account of profits, and reimbursement of the legal costs incurred for these letters/declarations.
  • Writ of summons: if the other party does not respond to the cease-and-desist letter and/or is unwilling to sign the declaration and also does not stop the infringement and/or is unwilling to pay the damages, you can issue proceedings against that party in the civil court.
    If you can show that there is an urgent interest in the outcome of the case, then you can go to the court in interim injunction proceedings. Through this court you get a ruling much more quickly than through what is called proceedings on the merits (think of two to three weeks instead of months). Whether you are entitled to damages, and how much, is often determined by the court.

Infringing someone’s image rights is also a criminal offence under Dutch law and can in theory be punished with a fine, although prosecutions are rare in practice.

Deepfakes and AI-generated portraits

With AI it is possible to make a convincing fake image or fake video of someone, a so-called deepfake. A portrait generated entirely by AI can also fall under image rights, as long as the person depicted is recognisable. For image rights it makes no difference in principle whether an image was made with a camera or generated by a computer: what is decisive is whether you are recognisable in it. If you are confronted with a deepfake or an AI portrait that is used without your permission, you can object to it, certainly where it infringes your privacy, affects a commercial interest or casts you in a bad light. Often that runs together with a reliance on your right to privacy and protection against unlawful publication. Read more about the legal side of AI on our page on AI law, and about the use of deepfakes in film.

Image rights lawyer

Do you need help drawing up a cease-and-desist letter or writ of summons, or do you want help with a response to a cease-and-desist letter or writ of summons? Then get in touch and we will be happy to help you further. It is of course also possible to try to reach a settlement, a middle way, to save on (legal) costs for both parties.

Do different rules apply if not I, but (also) my child appears in a photo online?

The rules are (almost) the same, but because children are more vulnerable, adults (legal representative(s)) must give permission for publication of a portrait. If a child is 16 or older, he or she may withdraw that permission and decide for themselves what happens with the portrait. In the case of separated parents who both still have parental authority over their child, both parents must give permission for publication of a portrait.

What is the difference between the right to privacy and image rights?

Privacy is a broad concept and actually consists of several aspects: the right to private life, the protection of personal data and the right to protection of one’s honour and reputation.

The General Data Protection Regulation (GDPR) protects your personal data. A portrait is personal data. The GDPR therefore in fact offers broader protection of your privacy than image rights alone. This article does not go further into the rules arising from the GDPR. Read more about data protection law.

Can I earn money from a photo I appear in?

You could also sign an agreement setting out what happens with your image rights. In most cases you, as the person portrayed, give permission for publication of your portrait, often against a fee. You thereby waive your image rights. Note that this therefore does not mean that you are giving permission to model, but really for publication of the portrait.

Such an agreement is called a ‘quitclaim’ or a ‘model release’. For example, a model in a fashion magazine and a photographer, or a person appearing in an advert and the maker and broadcaster of it. A quitclaim does not automatically cover every use: what does and does not fall within it depends on how the agreement is worded. What belongs in such a declaration is set out on image rights for businesses.

If someone under 18 is party to a quitclaim, then the parent or guardian must sign this agreement.

Would you like to have a quitclaim drawn up, or to check whether one is clear enough? This is something we can help you with.

Compensation if you are not a public figure

As mentioned earlier, you can claim damages if you have a legitimate interest (often privacy) in having your portrait (non-commissioned) removed, or if you did not give permission for publication of a commissioned portrait but this is done anyway. How high the compensation is for the person portrayed differs from case to case.

Compensation for public figures and celebrities

As mentioned earlier, popular famous people have that commercially exploitable popularity. In practice this means that brands wanting to make commercial use of a famous person must ask them for permission to do so. That permission is almost always linked to a (reasonable) fee. If the company/brand does not do so, then that famous person can request a fee where there is a commercial interest in objecting to publication of the portrait.

That fee can consist, for example, of an amount equal to the amount the famous person could have earned had he/she given permission for publication. A great deal of litigation takes place about this in the Netherlands and sometimes famous people receive a substantial sum.

Can I give/transfer my image rights to someone?

No, image rights cannot be transferred to someone else; they are your rights in your own portrait. But what then happens to your image rights after your death? When you die, your image rights pass to your surviving relatives. These are your parents, spouse/registered partner and/or children. Heirs other than those mentioned above can never obtain the image rights. Nor can the surviving relatives transfer your image rights to someone else.

When do image rights lapse?

As mentioned above, after your death your surviving relatives can hold your image rights. For as long as there is a legitimate interest, your surviving relatives have the right, for 10 years, to object to publication of your photo. If that legitimate interest is absent, then a surviving relative cannot object. Whether surviving relatives of famous people with their own commercial interests can object is unfortunately not yet a question that can be answered unequivocally.

Which photos may I use (for free)?

Stock photos are photos that you can download via certain websites, free of charge or for payment, without having to ask permission from the maker of the photo each time and/or having to pay money. This relates to copyright. It does not mean that a stock photo can no longer be subject to image rights.
If a recognisable person appears in the photo and you use it commercially, that image-rights use has to be arranged separately. A company that failed to do so with a photo of the well-known football coach Louis van Gaal ended up paying him EUR 25,000. How to avoid this as a business is explained on image rights for businesses.

Image rights turn on the facts of each case. If you are unsure where you stand, get in touch and we will assess your situation.

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