Publishing a photograph of an identifiable person involves two separate rights. Copyright belongs to the photographer and covers reproduction and publication of the image. The portrait right (portretrecht) belongs to the person shown and lets them object to publication where they have a reasonable interest in doing so – most often privacy, or, where their image has market value, a financial interest in that value.
Which rule applies depends on how the photograph was made. If it was made on commission from the person portrayed, publication needs their consent. If it was not, publication is allowed unless a reasonable interest of the person portrayed opposes it.
What is a portrait right?
การขอ ภาพเหมือนด้านขวา is part of Dutch copyright law. The Copyright Act (Auteurswet) treats a commissioned portrait and a non-commissioned portrait differently, with different consequences for publication and different rights for the parties involved.
The law does not fully define what counts as a portrait. It describes a portrait as an image of a person’s face, with or without other parts of the body, made in any way.
In practice, a portrait is not limited to a face. The addition “made in any way”
means it does not matter whether the image is a photograph, a painting, or something else, so a television broadcast or a caricature can also be a portrait. The Supreme Court has since clarified that the decisive test is recognisability: someone counts as portrayed once they can be recognised, whether from facial features, a distinctive posture, a hairstyle, or their surroundings. A person walking in front of their own workplace is easier to recognise than the same person somewhere they would not normally be.
When is your portrait right violated?
Your portrait right may be violated once you are recognisable in a photograph that is published without your consent. What follows depends on whether the portrait was commissioned and whether your interest outweighs the publisher’s freedom of expression. If you commissioned the portrait, it may only be published with your permission – the photographer holds the copyright but still needs your consent to publish.
The reverse also applies: as the person portrayed, you may use the portrait privately, but if you want to make it public yourself,
you generally need the photographer’s permission, since the copyright is theirs.
What counts as a reasonable interest?
ภายใต้มาตรา 21 ของ พระราชบัญญัติลิขสิทธิ์, the photographer may in principle publish a non-commissioned portrait freely. This is not absolute: you may object if, and to the extent that, you have a reasonable interest in preventing publication. Privacy is the most common reasonable interest. Well-known people such as professional athletes and artists can also have a commercial interest in preventing publication.
Beyond a commercial interest, a well-known person may also have a reputational interest, since an unwanted publication can cause reputational damage. Because “reasonable interest” is open to interpretation and parties rarely agree on it, this concept is litigated often. It is then for the court to weigh the interest of the person portrayed against the interest of the photographer and the publisher.
The main grounds relied on in portrait-right cases are:
- a reasonable interest, most often privacy
- a commercial interest in the image’s market value
Take a well-known athlete such as Robin van Persie as an illustrative example: someone with that level of fame typically has both a reasonable interest and a commercial interest in controlling use of their image. Dutch case law recognises that the financial and commercial value of a well-known person’s popularity can itself amount to a reasonable interest under Article 21 of the Copyright Act, so publication of their portrait without consent is not permitted where that interest opposes it.
A well-known athlete may charge a fee for permission to use their portrait commercially, for example through a sponsorship deal. But what if you are a less well-known, amateur athlete? Under certain circumstances, the portrait right protects amateur athletes too.
In an older case, amateur boxer Arnold Vanderlyde successfully relied on his portrait right after a weekly magazine published by Spaarnestad used his image without his permission and without paying him. The court held that even an amateur athlete can capitalise on their popularity once that popularity turns out to have market value.
What can you do about a violation?
If your portrait right has been violated, you can demand a ban on further publication, or, if your image has already been used, claim compensation. The amount awarded is usually modest and depends on the circumstances. Four options are commonly used to act against a violation:
- จดหมายหยุดและเลิก
- การดำเนินคดีแพ่ง
- an injunction against publication
- a claim for compensation
What penalties can follow?
Once it is clear that someone’s portrait right is being violated, it is often important to seek a court order against further publication as quickly as possible. Depending on the situation, existing copies can also be withdrawn from the market (a recall). This is often combined with a claim for damages.
Publishing a portrait unlawfully can cause the person portrayed real damage. How much compensation follows depends on the harm suffered and on the portrait itself. Article 35 of the Copyright Act also makes it a criminal offence to exhibit or otherwise publish someone’s portrait in public without being entitled to do so; this is punishable with a fine.
If your portrait right is infringed, you can also claim damages once your image has already been published and you believe your interests have been harmed.
Courts usually decide the amount of compensation. A well-known example is the case brought against De Volkskrant, which put a recognisable photograph of a man on its front page next to the headline “Is Schiphol still safe?” even though he had nothing to do with the security topic the article addressed. The Amsterdam Court of Appeal held that the combination of image and headline unlawfully suggested he was somehow involved, and awarded him €1,500 in compensation (ECLI:NL:GHAMS:2017:3247, upholding ECLI:NL:RBAMS:2016:5786).
The lesson from that case is that context matters as much as the image itself: a portrait combined with a misleading caption or headline can be unlawful even where the photograph itself was taken in a public place.
Where a commercial interest is involved as well as a reasonable interest, compensation can be considerably higher, depending on what comparable use of the image would normally cost, and can run into the tens of thousands of euros.
สรุป
- Copyright belongs to the photographer; the portrait right belongs to the person shown.
- A commissioned portrait needs the consent of the person portrayed before it is published.
- A non-commissioned portrait may be published unless a reasonable interest, such as privacy or commercial value, opposes it.
- Even amateur athletes and other less well-known people can rely on the portrait right once their popularity has market value.
- Violations can lead to an injunction, a recall, compensation, or a fine under Article 35 of the Copyright Act.
คำถามที่พบบ่อย
Can I publish a photo I took myself of someone else?
You hold the copyright as the photographer, but the person shown can still object under their portrait right if they have a reasonable interest against publication, even though you took the photo yourself.
Do I need permission to photograph people in public?
Taking the photograph is usually not the issue; publishing it is. In public, a bystander is often not the main subject and recognisability, context, and any accompanying text or caption all affect whether their reasonable interest is violated. The closer the picture and its caption come to suggesting something specific and unflattering about the person shown, the more likely a court is to find that their reasonable interest outweighs the freedom to publish.
What can I do if my photo is used commercially without payment?
You can send a cease-and-desist letter, start civil proceedings, ask the court for an injunction, or claim compensation.
If you would like to know more about portrait rights, whether you can use a particular portrait without permission, or you believe someone is violating your portrait right, the lawyers of Law & More can assess your situation.
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