Portrait rights

Portrait rights

A portrait right is the right of an individual to dispose of their own portrait. A portrait is an image of one's own physical, recognizable identity. It explicitly concerns the 'recognizable identity' and not just the face. After all, a photograph in which the face is covered can still constitute an infringement of recognizable identity.

Portrait rights are part of copyright. The Copyright Act distinguishes between two situations regarding portrait rights: a portrait commissioned or not.

Commissioned portrait:

For the publication of a commissioned portrait, permission from the person portrayed is always required. The creator of the portrait, the photographer, must also grant permission for publication. After all, the photographer holds copyright on the photograph taken. In the case of commissioned portraits, therefore, a situation exists where portrait rights and copyright exist side by side. Both rights restrict each other to a certain extent. The copyright holder may not publish the photograph freely due to portrait rights. Conversely, the portrait rights holder may often not publish the photograph freely either, due to the creator's copyright.

Uncommissioned portrait:
In principle, a portrait that was not commissioned may be published freely, unless the person portrayed can demonstrate a reasonable interest against the publication. A reasonable interest could, for example, be an infringement of the fundamental right to privacy. On the other hand, the person who published the portrait may also raise valid arguments, such as freedom of expression, freedom of the press, or commercial interests. Consequently, a discussion regarding portrait rights can quickly escalate into a fundamental conflict between fundamental rights.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of portrait rights. Contact us to discuss the possibilities.

Portrait rights within intellectual property (IP law)

Portrait rights belong within the broader field of Intellectual Property (IP) law. They are regulated in Articles 19, 20, and 21 of the Copyright Act and are closely related to copyright . Unlike many other IP rights, portrait rights do not arise through registration or a creative performance, but simply because a person is depicted in a recognizable way. As a result, portrait rights frequently conflict with copyright on the image and with fundamental rights such as freedom of expression (Article 10 ECHR) and the right to respect for private life (Article 8 ECHR).

At MKB Juristen, lawyers and in-house counsel collaborate on portrait rights issues for clients of all sizes: from an international corporation rolling out an advertising campaign to the baker on the corner who wants to display a satisfied customer on their website. We translate legal regulations into workable advice.

The legal basis: Articles 19, 20 and 21 of the Copyright Act

Portrait rights comprise three core provisions:

• Article 19 of the Copyright Act – the person portrayed (or their next of kin) may make a commissioned portrait public themselves; the creator retains their copyright.
• Article 20 of the Copyright Act – the creator of a commissioned portrait may not make it public without the permission of the person portrayed.
• Article 21 of the Copyright Act – a portrait not commissioned may be published, unless a reasonable interest of the person portrayed opposes this.

The linchpin of virtually every portrait rights dispute is the concept of reasonable interest under Article 21 of the Copyright Act. That interest can be of a personal (privacy) nature, but also of a commercial nature.

Legitimate interest: privacy versus commercial interest

A legitimate interest within the meaning of Article 21 of the Copyright Act falls roughly into two categories:

• Privacy interest. The person portrayed does not want a (private) image to be disseminated. In this regard, the nature and context of the photo, the location where it was taken, and the sensitivity of the image are taken into account.
• Commercial interest. Anyone who has gained popularity through their profession has an interest in monetizing that popularity themselves. This is called marketable popularity.

The judge always weighs the interests of the person portrayed (Article 8 ECHR) against the interest of the publisher – for example, freedom of the press and expression or a commercial interest (Article 10 ECHR).

Monetizable popularity and reasonable compensation

In the Cruijff/Tirion judgment (Supreme Court, June 14, 2013), the Supreme Court ruled that the right to one's image is not an absolute right to prohibit in cases of marketable popularity. A famous person cannot simply object to every publication. If only a commercial interest is at stake and no additional privacy interest, offering reasonable compensation can be decisive: that compensation must reflect the degree of fame and the economic value of the exploitation. If no appropriate compensation is offered, the person portrayed can still block publication, provided they cite additional circumstances. This is of great importance for brands working with influencers, ambassadors, or famous faces; this also frequently applies to advertising and promotion.

Portrait rights, copyright and the GDPR

With a photograph of a person, three rights often come into play simultaneously. The photographer holds the copyright to the photo, the person depicted holds the right of publicity, and because a recognizable portrait constitutes personal data, the General Data Protection Regulation (GDPR) also applies. The GDPR sets specific requirements for consent: it must be free, specific, informed, and unambiguous. Therefore, consent for the right of publicity is not automatically consent within the meaning of the GDPR. Anyone using images commercially would do well to safeguard both the right of publicity and privacy regulations.

Quitclaim: properly document consent

Prevention is better than litigation. Anyone using images of individuals—in a campaign, on a website, in a corporate video, or on social media—documents consent in a so-called quitclaim or model agreement. This document specifies, among other things, for which channels, for what use, and for what period permission is granted, and whether compensation is involved. For employees who appear in images, an agreement regarding use after termination of employment should be included in or alongside the employment contract. Our legal experts draft these documents to suit your specific needs.

Infringement of portrait rights: what can you do?

Is your portrait being published without permission, or is someone accusing you of infringement? In that case, there are several steps you can take:

• Demand letter. A substantiated letter demanding removal, rectification, and/or compensation.
• Summary proceedings. In urgent cases, the judge may impose a publication ban or removal on short notice.
• Compensation. The damages suffered may be claimed, including lost license fees in the event of commercial use.

From the publisher's or entrepreneur's perspective, we specifically assess whether a claim based on freedom of the press or expression, news value, or reasonable compensation has a chance of success. In this way, we prevent unnecessary proceedings.

How MKB Juristen helps you with portrait rights

Our lawyers and in-house counsel advise across the full spectrum of portrait rights: from drafting quitclaims and media policies to conducting litigation. We serve large corporations and media companies as well as individual entrepreneurs and photographers. Would you like to know where you stand? Contact us to discuss your situation without obligation.