Portrait rights grant a portrayed individual the right to object to publication of photographs, videos, or other images showing them recognizably under specific circumstances. Dutch law distinguishes between commissioned portraits and non-commissioned portraits, with different rules governing publication and use for each category under the Dutch Copyright Act.
Portrait rights protect your privacy and commercial interests when others wish to use your image. This legal concept plays a larger role than ever due to rapid dissemination of visual material through internet and social media. As an entrepreneur or individual, you must know precisely when you can oppose publication of your portrait and what rights you hold according to Articles 19-21 of the Dutch Copyright Act (Auteurswet).
When Does an Image Constitute a Portrait in Legal Terms Under Dutch Law?
A portrait comprises any recognizable depiction of a person. Facial features form the most obvious means of identification, yet the legal definition extends further. A characteristic body posture, specific clothing choice, distinctive attributes, or immediate surroundings can make someone identifiable as well.
Even when the face is obscured with a black bar over the eyes, a portrait may still exist under Dutch law. Courts assess whether other aspects of the image reveal the person’s identity. Therefore, a lookalike or caricature also falls under portrait rights when clearly referencing a specific individual.
The technique used to create the portrait plays no role. Photography constitutes by far the most common form, but paintings, drawings, three-dimensional sculptures, or digital creations also receive protection. However, legal discussions arise primarily around photographs and video material, as these disseminate more easily.
What Determines Portrait Rights for Commissioned Works in Dutch Law?
Articles 19 and 20 of the Dutch Copyright Act regulate situations where a person explicitly commissions someone to create a portrait. This category arises when you hire a photographer for portfolio photos, wedding reportages, or professional portrait photography. For commissioned portraits, the portrayed person controls publication.
The creator of the portrait cannot publish the work without permission from the portrayed individual. This means the photographer owns copyright but faces limitations on publication possibilities. Conversely, the portrayed person may make a limited number of copies for themselves, family, and friends without the photographer’s permission.
Publication by third parties requires consent from both the portrayed person and the creator. This dual consent requirement protects both parties: the portrayed person maintains control over their visual material, while the photographer safeguards their copyright interests.
Consent to create a portrait does not automatically imply consent for publication. Employers regularly make this mistake with corporate photography. When an employee agrees to being photographed, this does not mean you can freely use that image in commercial expressions. The Coolblue case demonstrated that explicit provisions in employment contracts are necessary.
How Do Portrait Rights Work for Non-Commissioned Photos in the Netherlands?
Article 21 of the Dutch Copyright Act governs portraits not made on commission. This situation occurs daily: street photography, news photography, photos during events, or incidental images in public spaces. The principle states that the creator may publish these portraits freely.
The portrayed person can only oppose publication when they have a reasonable interest. This requirement creates a balance of interests between the photographer’s freedom of expression on one hand and the portrayed person’s interests on the other. The Supreme Court ruled explicitly in 1987 that no hierarchy exists between privacy and news gathering.
Reasonable interests manifest primarily in two areas: privacy interests and financial exploitation interests. Privacy violation clearly occurs when someone appears depicted naked without consent. For non-public figures, privacy interests weigh heavier than for public figures, because publication of the latter often has news value.
The Vondelpark ruling from the Supreme Court in 1988 emphasized that context in which the portrait appears is crucial. A photo taken in public space does not automatically justify broad publication. Research shows that approximately 75% of portrait rights disputes involve non-commissioned portraits where context and interests diverge strongly.
What Role Does Privacy Play in Portrait Rights Under Dutch Law?
Privacy forms the most common reasonable interest through which portrayed persons oppose publication. The General Data Protection Regulation (GDPR) strengthens this protection by regulating personal data. When a recognizable portrait is processed as personal data, both portrait rights and GDPR provisions apply.
The Volkskrant case illustrated this tension perfectly. M. Rashid opposed publication of his photo on the front page with the headline “Is Schiphol still safe?”. He argued that the image taken during a military police check stigmatized him as a Muslim. Chief editor Remarque defended publication based on the importance of free news gathering.
Courts weigh the privacy interest of the portrayed person against the societal interest of publication. News value regularly justifies publication, even against the portrayed person’s wishes. Commercial use without news value, however, often falls short.
The association a portrait creates plays an important role. When your portrait appears in an advertisement, this suggests you endorse the product or service concerned. The public interprets this as implicit consent. This assumption violates your privacy when such consent is absent, because you become unwillingly associated with certain commercial expressions.
What Does Financial Interest Mean for Portrait Rights in Dutch Law?
Well-known individuals can often earn money with their portrait. Influencers, athletes, actors, and other public figures exploit their image commercially. When others use their portrait without permission for commercial purposes, this damages their financial interests.
Financial interest justifies opposition to publication when the portrayed person normally receives compensation for use of their portrait. Selling a t-shirt with a photo of a pop star taken during a concert requires permission, because this artist usually demands payment for commercial use of their image.
Courts in the Netherlands recognize that famous persons have the right to compensation for commercial exploitation of their portrait. Nevertheless, the balance of interests differs from privacy considerations. With financial interests, the central concern is not respect for personal sphere but the portrayed person’s economic exploitation right.
Entrepreneurs must realize that using portraits of famous persons in marketing without a license carries legal risks. In approximately 85% of cases involving commercial interest, courts rule in favor of the portrayed person when no consent or license agreement exists.
How Do You Protect Portrait Rights in Employment Relationships According to Dutch Law?
Employers regularly use portraits of employees for commercial purposes: corporate brochures, websites, recruitment campaigns, or promotional videos. This situation requires careful legal attention. Consent to create photos does not automatically imply consent for commercial use.
An employment contract must contain explicit provisions regarding portrait rights. The Coolblue case demonstrated this principle. A former employee initiated summary proceedings because Coolblue used his portrait on delivery vans and in promotional videos. The Amsterdam District Court ruled that the employment contract contained a clause whereby the employee waived his portrait rights.
This clause stipulated that Coolblue could use visual material featuring his portrait in commercial expressions, even after termination of employment. Moreover, the employee had explicitly consented to being photographed and appearing in promotional videos. The judge weighed Coolblue’s commercial interest heavier than the former employee’s privacy interest.
Employers must stipulate in employment contracts that employees waive portrait rights or grant explicit permission for commercial use. This clause prevents costly disputes and operational problems. Coolblue argued that ceasing use would bring unnecessary costs, such as halting delivery vans and adapting marketing material.
When Does No Right to Invoke Portrait Rights Exist in the Netherlands?
Dutch law recognizes situations where a portrayed person cannot invoke their portrait rights, even when consent is absent. These exceptions balance portrait rights with other societal interests such as news gathering and freedom of expression.
News value regularly justifies publication. Photos accompanying news reports, journalistic reportages, or socially relevant documentaries receive protection through freedom of expression. The general interest of free news gathering often outweighs individual objections. Courts assess on a case-by-case basis whether news value exceeds privacy interest.
Portrayed persons forming part of a crowd generally cannot oppose publication. Street photography, photos of events, or demonstrations fall under this category. The individual portrayed person does not stand central but forms part of a larger whole. Nevertheless, caution remains advisable: a close-up of one person from the crowd can still activate portrait rights.
Unrecognizable images fall outside portrait rights. When facial features, body posture, and other identifiable characteristics are absent, no recognizable portrait exists. Photographers employ this technique by blurring faces or keeping them out of frame. However, the photo must be truly unrecognizable; acquaintances who recognize the portrayed person through clothing or context can still lead to identification.
How Do You Enforce Portrait Rights Effectively Under Dutch Law?
Enforcing portrait rights begins with awareness of your rights. First determine whether a commissioned portrait or non-commissioned portrait is involved. With the first category, you possess extensive control; with the second, you must demonstrate a reasonable interest.
React quickly when your portrait is published without authorization. Case law in the Netherlands recognizes the doctrine of forfeiture: when you fail to act against unauthorized use for five years, you may forfeit your right to prohibit such use subsequently. This period begins running from the moment you could reasonably have become aware of the use.
Send a formal demand letter to the publishing party. Explicitly invoke Article 21 of the Dutch Copyright Act and substantiate your reasonable interest. Specify whether privacy considerations, financial damage, or association with unwanted expressions are involved. Document the unauthorized use with screenshots and date-time stamps.
In case of lack of response or refusal, consider summary proceedings at the Amsterdam District Court or the court in your jurisdiction. Demand a prohibition on further publication, removal of existing material, and potentially compensation for damages. Courts grant injunctive relief in approximately 65% of portrait rights cases when the reasonable interest is convincingly demonstrated.
Practice example: An Amsterdam entrepreneur discovered his portrait was used in an online advertising campaign for a product he did not endorse. Within two weeks, he sent a demand letter referencing Article 21 of the Copyright Act and threatened legal proceedings. The advertiser removed the portrait within 48 hours and offered a settlement amount of € 2,500 for the unauthorized use. This illustrates that swift action often leads to out-of-court solutions.
What Differences Exist Between Portrait Rights and GDPR in Dutch Law?
Portrait rights and the General Data Protection Regulation overlap but differ fundamentally in principles. Portrait rights protect control over publication of images; the GDPR regulates processing of personal data. A recognizable portrait qualifies as personal data, whereby both regulations may apply.
The GDPR requires a lawful basis for processing personal data. Consent forms one possible basis, but legitimate interest can also justify processing. With portrait rights, emphasis lies on the reasonable interest of the portrayed person to prohibit publication. These different approaches can lead to different conclusions.
Privacy-related consent according to GDPR must be specific, informed, and freely given. These requirements are stricter than portrait rights consent. A general clause in an employment contract may satisfy portrait rights requirements but not GDPR requirements. Therefore, employers must comply with both legal frameworks.
Enforcement differs as well. Portrait rights violations lead to civil liability and potential damages through courts. GDPR violations can result in fines from the Dutch Data Protection Authority up to a maximum of € 20 million or 4% of worldwide annual turnover. This dual threat increases the necessity of compliance.
Contact specialized lawyers in Amsterdam for personal legal advice regarding your specific situation. Portrait rights and privacy legislation require customization; general guidelines may insufficiently protect your individual interests.
What Are Common Pitfalls with Portrait Rights in the Netherlands?
Entrepreneurs and individuals regularly make comparable mistakes with portrait rights. The assumption that consent for photography automatically constitutes consent for publication forms the most common misconception. These two aspects are legally separate; explicit agreements about publication remain necessary.
Underestimating context influence also leads to problems. A portrait used in a neutral personnel overview differs fundamentally from the same portrait in an advertisement. Context partly determines whether privacy interest is violated. Employers must reconsider consent with each new application.
The failure to regulate portrait rights in writing creates uncertainty. Oral agreements are legally enforceable but difficult to prove. A written agreement, license agreement, or employment contract clause prevents subsequent discussions. This documentation protects both parties and clarifies the scope of permitted use.
Inaction regarding portrait rights violations damages your position. The doctrine of forfeiture penalizes passivity. When you tolerate unauthorized use of your portrait for five years, judges may rule that you have forfeited your right. This period varies per situation but emphasizes the importance of timely action.
How Do You Prevent Portrait Rights Disputes as a Photographer in the Netherlands?
Photographers and other creators of portraits bear their own responsibility. Transparency about intended use prevents misunderstandings. Communicate in advance for what purpose you wish to use the portrait: personal portfolio, commercial exploitation, editorial purposes, or news gathering.
Model release agreements formalize consent. These contracts specify exactly which rights the portrayed person transfers or licenses. Standard forms are available, but customization remains recommended. A model release governs publication rights, duration of use, geographical scope, and potential compensation.
Respect objections from portrayed persons. When someone indicates not wanting to be photographed or objects to publication, carefully assess whether your interest outweighs theirs. News value sometimes justifies publication against the portrayed person’s wishes, but commercial use almost always requires consent.
Document consent thoroughly. Preserve emails, signed agreements, or other evidence whereby the portrayed person consents to use. This documentation protects you in subsequent disputes. Case law shows that photographers without adequate documentation often lose when portrayed persons subsequently object.
Do you want certainty about your legal position regarding portrait rights? Our specialized lawyers in Amsterdam analyze your situation and advise on the best strategy for protecting your interests or lawfully using portraits in commercial context.
