The person who takes a photograph owns its copyright. This naturally also applies to portrait photographs. But photographing people is not always permitted without restriction. The person portrayed also has certain rights, known as portrait rights. Under these rights, the subject may, for example, copy the photograph and even publish it, provided the photographer is credited.
A portrait made without a commission may be published only if doing so does not harm a reasonable interest of the person portrayed.
Commissioned portraits
The law distinguishes between ‘commissioned portraits’ and ‘portraits made without a commission.’ For commissioned portraits, the basic rule is simple: the subject may make copies of the work, while the creator may not publish it without permission.
Use by the person portrayed
Copying is not an infringement
When someone commissions a portrait, its creator owns the copyright. The person portrayed, however, has the right to make copies of that portrait. The Dutch Copyright Act states (Section 19, paragraph 1):
The reproduction of a portrait by or on behalf of the person portrayed, or after that person’s death by their surviving relatives, shall not be regarded as an infringement of the copyright in that portrait.
If several people appear in the portrait, they must obtain one another’s permission before making a copy. If one of the people portrayed has died, that person’s surviving relatives have the right to grant or withhold permission for ten years.
Publication by the person portrayed is permitted
The person portrayed may publish, or have published, a photographic portrait of themselves in a newspaper or magazine without the photographer’s permission. The photographer must be credited. This applies only to newspapers and magazines, not, for example, to books or websites.
The photographer’s moral rights must also be respected. This means the work may not be distorted, mutilated, or otherwise altered in a way that damages the photographer’s reputation.
The creator is not required to help make any of this possible. A photographer therefore does not have to surrender or lend out negatives so that the person portrayed can order additional prints from a photo lab.
Use by the portrait’s creator
No publication without permission
As noted above, the photographer, painter, or other creator of the portrait owns the copyright in the image. Some restrictions do apply. The most important is that the creator may not publish the work without the permission of the person portrayed. If that person has died, their surviving relatives have the right to grant or withhold permission for ten years.
If several people appear in the portrait, the creator needs permission from everyone portrayed.
Obtaining permission
The creator will usually ask for permission explicitly, but permission can also be implicit. If someone is interviewed for a newspaper and the newspaper’s photographer takes a picture, that person should have understood that the photograph would appear in the paper. The newspaper does not then need to ask for permission separately.
Portraits made without a commission
Portraits can also be made without a commission. A photographer might, for example, photograph shoppers on a shopping street or take pictures at a trial or soccer match. A different rule applies in these cases: publication is permitted unless it infringes a reasonable interest of the person portrayed.
The law states (Section 21):
‘[For a portrait made without a commission,] publication by the copyright holder is not permitted insofar as a reasonable interest of the person portrayed—or, after that person’s death, of one of their surviving relatives—opposes publication.’
Case law has addressed what constitutes such a ‘reasonable interest.’ The principal interests are financial interests and privacy. Unwanted publication of portraits involving nudity or erotic content, for example, will almost always conflict with a reasonable interest of the person portrayed.
Use in news reporting
Showing someone’s portrait can have news value. At the same time, publication in a newspaper can violate a person’s privacy or even portray them negatively. A photograph showing someone as a suspect can continue to harm that person long after an acquittal. Newspapers therefore generally obscure suspects in such photographs, traditionally with a black bar and now increasingly by digitally blurring the entire head.
Publishing a witness’s portrait can put that person in serious danger, for example if they are testifying against a criminal organization. Here too, a reasonable interest opposing publication can quickly arise.
In the Ferdi E. judgment, the Dutch Supreme Court held that an invasion of privacy is, in principle, a reasonable interest that opposes publication. That interest is not absolute, however, and must be weighed against considerations such as freedom of expression. The case concerned whether a photograph of Ferdi E., who kidnapped Gerrit Jan Heijn, could be published without a bar obscuring his face. The court must balance the interests based on the facts and circumstances of the case.
In 2003, two police officers photographed during a speed check invoked their portrait rights against the photographer, who wanted to post the photographs on a website. The photographer argued that there was a public-interest news value: the police carry out their work in public and it must be possible to report on it. On appeal, the court ruled that publication was permitted, provided the officers were shown unrecognizably and their names were not included. This still allowed the speed-enforcement activities to be reported while protecting the officers’ privacy.
Use in advertising
A reasonable interest can also readily arise when someone’s portrait is used in advertising. In 1997, for example, the Dutch Supreme Court held that a dancer at Amsterdam nightclub iT had a reasonable interest in opposing publication of an action photograph in the Gaykrant newspaper.
In February 2005, the District Court of Amsterdam ruled that a portrait of Prime Minister Balkenende could not be used in a Kijkshop advertisement. It was a caricature rather than a photograph, but the hairstyle, glasses, and facial expression made the subject clearly identifiable. The drawing therefore qualified as a portrait.
The defense that the image was intended as satire—as supposedly shown by the slogan ‘Without a salesperson, J-Peetje shops for less’—did not succeed; an advertisement is not a political cartoon. Nor was it enough that the prime minister was a public figure and therefore had a reduced privacy interest.
Some rights reserved
For more information on this subject, see the book Buiten beeld by Stichting Burafo.
Author: Arnoud Engelfriet
