This is how you protect your portraits through portrait rights

Portrait rights protect people against the unwanted publication of their face — Art. 19-21 Copyright Act. Distinction: commissioned portrait (the person portrayed has strong rights) versus uncommissioned portrait (the person portrayed can object to publication based on a “reasonable interest”). For commercial use (advertising, product packaging): permission is almost always required. For journalism or art: often exempt under conditions. Below: when is permission allowed and when is it not, how to arrange permission, and what to do in case of unwanted publication of your portrait.

The short answer

• What: protection against unwanted publication of someone's portrait.
• Legal basis: Art. 19-21 Copyright Act 1912.
• Commissioned: the person portrayed has the right of consent for publication.
• Without a mandate: publication is permitted unless “reasonable interest” opposes it.
• Commercial: permission is almost always required (marketable popularity).

Two scenarios: assignment or not?

Commissioned portrait (art. 19 Aw)

When someone commissions a photographer to portray them: the person portrayed has strong rights.

• Publication only with the permission of the person portrayed.
• Copyright remains with the photographer.
• The person portrayed can also make their own copies.
• Protects against commercial exploitation without consent.

Portrait without commission (Art. 21 Copyright Act)

Photo in a public space, at an event, or in a journalistic context. The photographer is the owner of the photo and may publish it unless the person portrayed has a “reasonable interest” against publication.

Reasonable interests may be:

• Privacy (domestic circle, intimacy).
• Merit — famous person whose image is commercially exploited without compensation.
• Reputation (negative association).
• Child protection.

Commercial use

For advertisements, product packaging, and marketing materials: permission is almost always required — even for unknown persons. Reason: “marketable popularity” and the fact that commercial use falls outside the reasonable expectation at the time of model inclusion.

For well-known persons (celebrities, athletes, politicians): higher threshold — use of a portrait in an advertisement without consent is almost always an infringement, even if the photo was previously published publicly.

Journalism and art

Freedom of the press (Art. 7 of the Constitution and Art. 10 of the ECHR) gives journalism broader scope:

• Photos of public figures in their public function.
• Photos accompanying newsworthy events.
• Photos for educational purposes.

Boundary: private life of famous persons, children's photos without parental consent, and publication in a context that damages reputation.

For artistic expression (documentary photography, art collages): case-specific assessment — artistic freedom vs. portrait rights.

Consent: how do you arrange it?

For commercial use: written model release agreement. Contents:

• Name and address of the person portrayed.
• Photo/series identification.
• Permitted uses (online, print, advertising, etc.).
• Duration of consent.
• Geographic area.
• Compensation.
• Any restrictions (no erotic context, no political use, etc.).

For children under 16: signature of both parents/guardian. For events with large groups: often “implied consent” via ticket terms and conditions (“photos may be taken and used”).

What if your portrait is published without permission?

1. Take-down request: to publisher (website, social media). Often the first step is sufficient.
2. Demand letter via legal counsel: in case of no response or refusal — demand removal and possible damages.
3. Summary proceedings: for an immediate prohibition of publication in the event of harmful effects.
4. Land case: for final ruling and damages.
5. GDPR complaint: regarding a privacy aspect, also file a complaint with the Dutch Data Protection Authority.

Compensation

For portrait rights infringement:

• Tangible: lost revenue (e.g. what commercial use would have cost via license).
• Non-material: damage to reputation, invasion of privacy.
• Increased damage from intentionally harmful use.

For celebrities for commercial use: typically tens of thousands of euros. For unknown persons in case of invasion of privacy: a few thousand to tens of thousands.

GDPR aspect

A photo with a recognizable face is personal data under the GDPR. For processing (publication, storage):

• Lawful basis required (consent, legitimate interest, etc.).
• Right to erasure (right to be forgotten).
• Right to object to processing.
• Complaint to the Dutch Data Protection Authority possible.

For commercial use via website/social media: both GDPR consent and portrait rights consent are required.

Honest recommendation

For commercial photography: always a written model release agreement — even when friends or employees act as models. For events with group photos: GDPR banner or terms and conditions included in the admission ticket. For anyone whose portrait is displayed against their will: a prompt take-down request, followed by a cease and desist letter. In the event of commercial infringement: demand damages. For the combination of portrait rights and GDPR: a specialized media lawyer.

For other topics: copyright protection, what is intellectual property , and privacy statement.

Frequently Asked Questions