You are writing a book and want to include a portrait of someone. This is something that happens frequently in practice. But is this actually allowed? In many cases, a photo may not be used without the person in the photo having given explicit permission. Sometimes, this person can invoke “portrait rights,” as it is officially called. Photos taken on a public road, for example, can usually be used without restriction. So what exactly are the rules regarding this? We’ll tell you in this blog!
What is a portrait?
Portrait rights apply not only to photographs but also to, for example, paintings, films, or drawings. Essentially, all forms of images in which a person is recognizably depicted.
When a face has been rendered unrecognizable, but facial features, typical body postures, environments, or certain attributes are present in the image, it can be considered a “portrait”.
When we talk about portrait rights (which are included in the Copyright Act), we are referring to two variants, namely:
- Portrait not commissioned.
- Commissioned portrait.
Portrait not commissioned
In general, portraits that were not commissioned may be published without permission. This often refers to photos taken at events or on public roads, for example.
This does not mean that you do not have to take the people depicted into account; on the contrary. If the persons portrayed have a reasonable interest in stopping or preventing the publication, legal action can be taken. This often concerns privacy or financial interests.
Consider commercial use or the damaging of a particular name or honor. In many cases, it also involves the use of images of famous people.
Commissioned portrait
If a portrait has been commissioned by the person depicted, it may only be used with that person’s permission. If the person in the portrait has only given permission to be photographed, for example, this does not automatically mean that you may simply publish it. Separate permission is required for this.
For commercial use, for example, this permission also applies in reverse. The person portrayed must also have permission from the photographer to publish photos and must always mention the photographer’s name.
Unsure? Check it!
So, there is quite a lot involved in deciding whether or not to publish a portrait in any form. Are you unsure if you are allowed to use an image in your book? Then try to check as thoroughly as possible. Contact a photographer, painter, or someone else who has an interest in the photo. Better safe than sorry!