Portrait rights allow you to take action against the unlawful use of your portrait in media communications, among other things, for privacy reasons, but portrait rights also play a role in a commercial context.
Portrait rights allow you to take action against the unlawful use of your portrait in media communications, among other things, for privacy reasons, but portrait rights also play a role in a commercial context.
A portrait need not be a conventional headshot. A video, drawing or other image may also constitute a portrait where a person is recognisable. Recognisability may arise partly from posture, clothing or context. Whether a particular image qualifies requires an assessment of the circumstances.
Copyright in a photograph and the depicted person’s portrait rights are different rights. The photographer’s permission does not automatically make publication lawful in relation to the subject. Conversely, the subject’s consent may be insufficient if the necessary rights from the photographer are missing.
The Dutch Copyright Act distinguishes portraits commissioned by or on behalf of the subject from other portraits. A special consent rule applies to publication of a commissioned portrait by the copyright holder. The precise commission and parties involved therefore matter.
For an uncommissioned portrait, not every publication without consent is prohibited. The subject may oppose publication where a reasonable interest weighs against it. That may concern privacy, but also a commercial or reputational interest. The relevant interests must then be balanced.
The location where the photograph was taken, its subject, accompanying text, the person’s public profile and contribution to public debate may matter. A photograph taken in a public street is therefore not automatically free to use. A public figure does not lose all protection for their private life either.
In Cruijff/Tirion, the Dutch Supreme Court clarified the balancing exercise for uncommissioned portraits. There is no general exclusive right to control every publication of one’s own portrait. Privacy and commercially exploitable popularity may, however, constitute a reasonable interest. A publication’s commercial nature is relevant but does not decide the matter by itself.
News, documentaries and biographies involve different circumstances from a product advertisement suggesting that someone endorses the brand. We therefore assess the particular use and its connection with freedom of expression and unlawful publications.
For campaigns, a clear agreement offers more certainty than general oral consent. Specify the channels, countries, period and purposes for which the image may be used. Address paid advertisements, editing, reuse, sublicensing and use after the collaboration ends separately.
Context matters too: consent to an interview is not automatically consent to an advertising campaign. For synthetic images or use of a face in AI applications, the intended modifications and risks must be assessed explicitly. Our work on media contracts addresses these issues.
A contractual agreement and consent as a legal basis under the GDPR are not the same either. Applicable privacy rules may impose additional requirements. In employment relationships in particular, consent is not necessarily freely given because of the employee’s dependency on the employer.
Preserve the image, complete publication, URL, date and any previous agreements. A cropped photograph alone may not adequately show why the use is harmful or misleading. We then assess who is publishing, who holds the rights and which legal basis is most appropriate.
A targeted demand may seek removal, restrictions on further use, an explanation or appropriate compensation. Urgent cases may require interim relief proceedings. Removal, correction and damages do not automatically follow from every absence of consent; the legal basis and proportionality must be substantiated. Where material is shared through social media, we also examine options involving the platform.
That depends on the purpose, agreements, context and applicable privacy rules. A current team page may wrongly suggest that someone is still employed. A historical news item requires a different assessment. An agreed retention policy helps but does not replace the balancing of interests.
Public accessibility is not general permission for reuse. Alongside portrait rights, copyright, privacy and the context of the new publication may matter. Downloading and reposting also differs from other forms of linking or sharing.
Are you preparing a campaign, documenting arrangements with a portrait subject or seeking an assessment of unwanted publication? Contact us. We connect the protection of individuals with the rights and practical interests of creators, clients and publishers.
