Portrait Right
Tags: drawing, foto, painting, photo, portrait right, portretrecht, schilderij, tekening.
In some cases, persons depicted in a photo can invoke portrait rights. The consequence of invoking this right is in some cases that the photo may not be published without the permission of the person portrayed. In addition to photos, the portrait right also applies to drawings and paintings.
The portrait right is regulated in the Copyright Act.
What is “Portrait”?
There is a portrait when someone is portrayed recognisably. For the assessment of this, not only the face is looked at, but also the posture and the environment are examined. As a result of this, it is, therefore, possible that if the face of the person portrayed has been rendered unrecognizable (for example utilizing the well-known black bar) it is still a portrait within the meaning of the Copyright Act.
Distinction between commissioned Portrait and non – commissioned Portrait
The Copyright Act distinguishes between two different types of portraits: the portrait that is commissioned and the portrait that is not commissioned.
A commissioned portrait may not be published without the permission of the person portrayed. Nor by the creator of the portrait who holds the copyright to the portrait. The permission is form-free: there are therefore no formal requirements for the form in which the permission is obtained. For example, an email in which permission is given is sufficient.
In principle, a portrait that has not been commissioned may be freely published, unless the person portrayed has a reasonable interest in opposing this publication. This often concerns privacy or financial interest. The judge ultimately decides whether the reasonable interest is sufficient to prevent publication of the portrait.
Do you have a question regarding portrait rights? Call or email Wouter Dammers from LAWFOX to get an initial estimate of the situation.
To Lexicon summary