Image rights for businesses

An employee of the Dutch online supermarket Picnic signed a quitclaim for a photo shoot in 2019. It was meant for a short Instagram campaign, in return for a small fee. That campaign never happened. Almost two years later she saw herself life-size on the company’s delivery vans.

Two courts held that the signed quitclaim didn’t cover that use (District Court of Amsterdam, 24 November 2022 and Amsterdam Court of Appeal, 24 September 2024). Picnic had asked for consent. Properly, in writing, in advance. And still ended up in court twice, because that one document didn’t say where the images were allowed to end up.

Image rights for businesses come down to one thing you settle up front. If you use a recognisable person’s image for advertising or corporate communications, you almost always need that person’s consent, recorded in a quitclaim that states which campaign and which media the image may be used for.

Not sure about a campaign that’s about to go live? Call +31 20 675 88 21.

When do you need consent to use someone’s image?

That depends on how the image came about.

If you had the material shot yourself, with the person in front of the lens, the Dutch Copyright Act treats it as a portrait made at the subject’s request or on their behalf. Article 20 then says publication requires that person’s consent. If several people are recognisable in the frame, you need consent from each of them. That includes the corporate film where half the team walks past.

If the image comes from somewhere else, from an event photographer, an archive or the street, article 21 applies. Publication is allowed unless the person has a legitimate interest in opposing it. That sounds broader than it is in practice. Where the use is commercial, Dutch courts accept a legitimate interest fairly readily, because nobody has to put up with appearing in an advertisement for free.

Either way the practical translation is the same. If you’re putting a person’s image into marketing, recruitment or other corporate communications, assume you need consent. The fact that the photo was taken in the street, that the person isn’t the main subject, or that the image was already floating around online will rarely save you.

For how that balancing exercise works, and when someone can and can’t object, see our page on image rights.

What belongs in a quitclaim

A word about the term first, because in film practice a quitclaim is something else. There it’s the declaration in which a rights holder confirms they make no claim to material used in a production, from archive footage to music, and those declarations together make up the chain of title. The version at issue here concerns the person in the picture. You’ll also see it called a model release.

Such a declaration should at least set out:

• which production or campaign you’re using the image for, and whether promotion around it is included
• which media and channels
• which territory
• whether you may edit or crop the image
• whether you may reuse the image in another context

A quitclaim doesn’t work with an expiry date. The limit sits in the campaign, not in the calendar. Stay within the campaign the consent was given for, and the promotion around it, and you don’t need to go back to the person. Move the image to another medium or a new campaign and you ask again, in writing, unless the agreement already provides for it or the person has no legitimate interest.

Be careful with catch-all wording. In the Picnic case the quitclaim said the image could be used through the company’s available promotional channels. Picnic took the delivery vans to fall within that, and had used those vans for advertising before. Neither the court nor the Court of Appeal accepted it. A collective term doesn’t automatically cover everything you choose to file under it.

If the person is under eighteen, a parent or guardian signs as well.

Want your set of quitclaims reviewed before the next production starts? Send us a message.

Can the person withdraw consent later?

Yes, someone can go back on their consent. That rarely means you have to pull the campaign immediately.

A withdrawal forces a weighing of their interest against yours. In commercial campaigns it counts heavily that you were entitled to rely on the consent given. Once the material has been shot, the production finished and the media budget spent, a withdrawal usually has no effect. That changes if there are particularly weighty circumstances on the other side. What falls into that category depends entirely on the case.

The difference often lies in how solid the consent was. A model who took part in a campaign knowingly and for a fee is in a weak position six months later. An employee who once nodded along when somebody came through the office with a camera is in a stronger one, particularly if the image now turns up somewhere they weren’t thinking of when they nodded.

What you can control in advance: record what happens if someone does pull out. Who bears the cost of withdrawing material, and within what period do you take it down? Those two sentences in a quitclaim save an argument later.

Can you keep using photos of employees after they leave?

For material that’s already out there, usually yes. Someone who has left can generally not demand that completed campaigns, old posts and archive publications disappear from the internet retroactively.

Put that same image into a new campaign or a current message after their departure and it’s a different matter. Then it turns on what you agreed and on both sides’ legitimate interests. Someone who’s been working for a competitor for two years and is still the face of your recruitment campaign has a point.

What makes the difference is whether you settled it in advance. Two Dutch cases about portraits on delivery vans show that sharply.

A delivery driver for the retailer Coolblue appeared on 36 vans and in a promotional video on YouTube. After a summary dismissal that was held to be valid, he demanded EUR 25,000 and the removal of all the material. He got nothing. His employment contract contained a clause on image rights that expressly covered the period after the employment ended, that clause was repeated in every renewal of the contract, and he had also cooperated with the shoots. The court found both express and implied consent, and held that there was no infringement of his image rights and no breach of the GDPR.

Picnic went the other way. There too something had been signed, but the quitclaim didn’t cover use on the vans. The infringement stood at both instances. Both courts also held that an ordinary employee, unlike a hired actor paid for long-running campaign work, doesn’t have to expect that she’ll be associated with the company for years.

So settle it at the start, in the employment contract or in a separate consent form, and distinguish between leaving material up and putting it to new use.

One more thing to keep in mind. An image is also personal data, so the GDPR applies alongside image rights. Consent from an employee is a shaky basis there, because of the question whether someone in a relationship of authority is genuinely free to refuse. More on that on our page about data protection.

A stock photo does not cover image rights

A stock licence isn’t a model release. The licence deals with the photographer’s copyright, so whether you may use that photo at all. The image rights of the person in it are a separate layer, and they don’t come with it.

Interbest found that out the hard way. The company ran a writing competition around the 2014 World Cup and used a photo of Louis van Gaal for it, bought from Getty Images. The advertisement ran full-page in de Telegraaf and on the back of the trade magazine Adformatie. Having bought a licence, the court held, made no difference to the infringement of his image rights. Van Gaal wasn’t even fully in frame, since the photo had been cropped, but his posture and features made him clearly recognisable.

The same question applies to archive footage and to material from earlier productions. Check whether a model release exists, and whether it covers your use. If there’s nothing, assume nothing.

What do you pay for the image of a well-known person?

Someone who has built up fame with commercial value can cash in on that value themselves. Dutch law calls this marketable fame, and it means a well-known face in your campaign is a line in your budget.

What that line costs is set by the market, not by the law. The asking price depends on reach, exclusivity, duration and the kind of brand someone is attaching themselves to. Skip it up front and the bill still arrives, because compensation awarded afterwards tends to track what the person could have charged had you arranged it properly. So it won’t come cheaper.

And the argument that the publication “gave them great exposure” doesn’t work. Visibility isn’t a means of payment.

Do image rights apply to AI-generated portraits?

Yes, if the person depicted is recognisable. In principle it makes no difference to Dutch image rights whether an image was made with a camera or generated by a computer. In the dispute between Max Verstappen and Picnic the Dutch Supreme Court went as far as holding that a deliberately deployed lookalike can amount to a portrait, and that it doesn’t matter if viewers can tell it isn’t the real person. For generated imagery the reasoning follows naturally.

If you’re putting AI imagery into a campaign, check that nobody recognisable appears in it who hasn’t consented. The same goes for a synthesised voice. And if you’re working with material that’s been edited or generated in a way that could mislead the viewer, bear in mind the transparency obligation under the AI Act, which requires such material to be identifiable as such.

We’ve written before about deepfakes and about the use of someone’s voice by AI.

What does an image rights infringement cost?

There’s no tariff. Dutch courts assess damages on the circumstances of the case, and those vary widely.

Interbest paid Van Gaal EUR 25,000. He had claimed roughly EUR 100,000 and produced statements suggesting that leading footballers can ask between EUR 50,000 and EUR 100,000 for an endorsement. The court found that insufficiently substantiated, because the campaign was short and the advertisement appeared only twice. Scale and duration push the figure down as readily as they push it up.

The Picnic case went differently. At first instance the employee was awarded EUR 10,000 for non-material loss, but the Court of Appeal set that aside. She couldn’t show lost income; she didn’t work as a model and didn’t make her image available to third parties for a fee. The damages had to be repaid.

So an infringement doesn’t automatically cost money. What it did cost Picnic: a removal exercise, two sets of proceedings and the years that came with them. The infringement itself stood at both instances.

Does a company have image rights of its own?

No. Image rights belong to natural persons only; a company has no portrait. A company does have an interest in its reputation, and that is a fundamental interest to be weighed against freedom of expression. The European Court of Human Rights confirmed this in 2020 in Regnum v Russia, and Dutch courts likewise accept that companies can rely on article 8 ECHR where they are accused of something without a proper factual basis. If your business is wrongly portrayed in a publication, read on about reputational harm and unlawful publication.

You’ve received a cease-and-desist letter. What now?

First check whether the claim holds up. Is the person genuinely recognisable? Was the portrait made at their request or not, and which regime applies as a result? Was there consent, and did it cover this use? And if damages are claimed, are they substantiated?

That last point is a weaker spot than people assume. Where someone doesn’t exploit their image commercially, lost income is hard to prove, and non-material loss has to be made plausible rather than merely asserted.

Read the rest of the letter too. A signed undertaking to refrain from further infringement, if one is enclosed, regularly contains obligations that reach beyond the case itself, such as a penalty clause or a commitment about future use. Signing without reading isn’t a good idea there.

Ignoring it rarely works out well. Nor does paying up straight away.

Image rights in your campaign, from quitclaim to defence

We review campaigns and productions before they go live, draw up quitclaims and model releases that actually cover the intended use, and advise on archive and stock imagery. If someone comes after you, we assess the claim and conduct the defence.

Questions about a campaign or a claim? Call +31 20 675 88 21 or get in touch.