PORTRAIT RIGHTS: 10 BASIC PRINCIPLES UNDER BELGIAN LAW
Portrait rights (as part of broader category of image rights) are personality rights and closely related to the right to privacy. Portrait rights means that you must ask a person’s permission before copying or distributing his or her image, even on the Internet or on social media. The broader image rights bring with them the need of consent of an individual when you want to take a picture and when you want to display it.
However, permission is only required if the person is depicted recognisably. This means that the person themselves or someone else can recognise the person portrayed, even if the full face is not shown. Permission is therefore not required for photographing individuals in a public place if the persons were not the focus of the picture. This is a vague criterion that often gives rise to discussions. Much depends on the concrete circumstances.
Portrait rights: permission required (e.g., a “model release”)
Permission to make, copy, distribute or display someone’s image can be given in writing or verbally – even tacitly. Tacit consent is only valid if the concrete circumstances exclude any ambiguity. Problems of proof often arise with verbal consent. It is therefore best to ensure that there is an unambiguous written, prior consent.
It is generally assumed that when someone poses for a photographer, he or she gives permission for the photo to be taken. Verbal or tacit permission to publish someone’s portrait is only exceptionally accepted (only if there is no doubt about it). This may be the case, for example, when a professional model or mannequin is showing a new clothing collection on the catwalk (in a Belgian court case, the court judged that the model tacitly consented to the taking of the photos and to their subsequent use for advertising).
As a professional photographer, it is best to have a good “model release”, in which the model gives his or her consent to the taking of the photos and their further use. In this model release it is advisable to specify for which purposes the photos will be used (e.g., advertising, fashion, press, art, exhibition, internet, social media, etc.), for which countries the model release is valid (e.g., Belgium, EU, worldwide, etc.), and whether the model is entitled to remuneration.
Permission is always interpreted restrictively. Thus, if clauses in contracts concerning portrait rights are unclear or ambiguous, they will be interpreted in favour of the person portrayed. For example, if you give permission for your photo to be published in a book or magazine, this does not automatically include permission for publication on the Internet. It is therefore best to draw up a “model release” as clearly as possible so that all intended uses are covered and so that the text can be understood by the model.
Portrait rights and minors
In the case of minors, parents must give their consent. If the minor can “form his own opinion”, his consent is also required, in addition to parental consent. It must then be assessed whether the minor is able to make a sufficient assessment of the consequences of his consent. It is generally assumed that this is from the age of 12 to 14 (but it can also be earlier). Here too, the concrete, factual circumstances must be considered.
Portrait rights: can you withdraw your consent?
In principle, you have the right to withdraw your consent to publication. This does not apply to your consent to take your picture if the picture has already been taken, only to your consent to publish it and further use it.
This “right of withdrawal” only applies for the future, and must not be abused (for example: in case the model knew or should have known that the photographer or the client made certain investments in relation to printing, advertising, etc.). For professional models or mannequins it will be more difficult to withdraw their consent afterwards. Much will depend on the concrete circumstances. In case law, a withdrawal of consent is only rarely accepted.
There is also a “right to be forgotten” (“droit à l’oubli”). In certain circumstances, someone who has previously been in the news may subsequently ask for his or her photograph to be removed. This right must be weighed against the public’s right to information.
How long do portrait rights apply?
Portrait rights continue to apply throughout the life of the person portrayed, and for up to 20 years after his or her death (permission must then be sought from the heirs). If a person portrayed has passed away more than 20 years ago, portrait rights will no longer apply, but the heirs or relatives might perhaps rely on a broader family personality right to protect the memory of the deceased.
Portrait rights and famous people
For public figures (such as politicians, sports people, film stars, television personalities, etc.), it is assumed that their portrait may be taken and published if this relates to their public activities in the context of reporting on current affairs and the public’s right to information.
The use must be within the scope of journalistic reporting, or must at least be informative, or relate to the general or social interest. This can be quite far-reaching.
In practice, it often comes down to the distinction between “informative” versus “commercial” use, although this is sometimes a thin line. In general terms, public figures are also entitled to their image rights and their privacy, unless the images are framed in their public function and have an informational or social importance. It is certainly not lawful to use images of public figures without their consent for advertising campaigns, to sell products (e.g., posters), etc. Also, it is almost never allowed to take or distribute pictures of celebrities in their private life.
What are the exceptions to portrait rights?
There are several exceptions or limits to portrait rights. In principle, you can take and publish someone’s picture if that person was not the focus-subject of the picture and was merely “accidentally” in the photo. This is a question of fact and depends on the concrete circumstances.
The rules are also less strict for public figures or persons with a public function (see the previous question). In principle, you may take and publish the picture of public figures to the extent that this relates to their public life. You cannot do so if this is done in the context of their private life and not if this is done for commercial purposes. For example, it is not allowed to use the image of a public person on social media for advertising purposes.
Portrait rights: what is the difference with copyright?
Portrait rights and copyrights are two different regimes. Nevertheless, they can apply simultaneously. For example, if a photographer takes a picture of someone, the photographer will normally own the copyright to the picture (provided it is sufficiently original). The portrait rights will remain with the person portrayed. The photographer will not be able to publish the photo without the consent of the person portrayed. The person portrayed, in turn, will not be able to publish the photo without the consent of the photographer. Both regimes therefore overlap (and limit) each other.
For a photograph of a work of art, you also need, in principle, the consent of the artist. For a photo of a building, you sometimes need the consent of the architect.
Portrait rights: are there specific rules for advertising?
There are no specific rules regarding portrait rights in the world of advertising. However, it is true that courts have less sympathy for the use of pictures of people in a commercial context than in an informational context. In other words, the use of photographs of people in an advertising campaign without their consent is almost never accepted. This applies to both private persons and public persons. Public persons are subject to more lenient rules than private persons, provided that the use of the photograph is in the context of their public function. The public interest is then taken into consideration. An advertising campaign is rarely, if ever, associated with the public interest.
In other words, do not use pictures of people for advertising purposes if you do not have permission to do so.
Do portrait rights also apply to social media and the Internet?
Yes, portrait rights also apply to social media and the Internet in general. Only the person portrayed can decide on the use of his or her photo on social media or the Internet. If someone recognises him or herself in photos or videos on a social network, this person can in principle oppose this use and request that the images be taken offline.
If you want to use film clips or photos that you found on the Internet, it is best to contact the persons depicted and the authors of the clips or photos to obtain permission.
Can you use the name or image of your followers in your communication? In principle, this is only possible with the permission of your followers, especially if the name or picture is used for commercial purposes. This permission can be given once for multiple uses but must be formulated in such a way that it covers all uses that are made. Moreover, the persons concerned can withdraw their consent later (if they do not abuse this right of withdrawal). The use of the name of fans or followers also requires specific permission.
What if portrait rights are infringed?
If your portrait rights are infringed upon, it is best to first contact the user or uploader of the images and ask them to remove them. On social media, you can often complain directly about a violation of your privacy by a photo or video posted on the platform. There are also special (faster) procedures for children aged under 13. This is for instance the case with Facebook.
If this does not produce the desired result, the owner of the portrait rights can also go to court. In the event of violation of portrait rights, the infringer can be held liable for damages suffered because of this violation and be ordered to pay compensation for damages. It must then be proven (1) that there has been a violation of the portrait rights (namely that an image was created or used/distributed without permission); (2) that damage has been suffered; (3) that the damage was caused by the infringement (causal link); and (4) that the defendant is the one who committed the infringement or is responsible for it. It is not necessary to prove that the infringer was acting in bad faith. In other words, even if you create/use an image in good faith, you may still be liable for the damages suffered by the person portrayed. It is often not easy to estimate the damages correctly. In many cases, this results in rather symbolic amounts (for moral damages), but there are also cases where courts have awarded substantial damages.
Apart from compensation, a judge can also order that the images be removed (for example, from Facebook) or destroyed and impose a ban on using the images in the future. Interim measures can also be requested through summary proceedings. In specific cases, the offender may also be prosecuted, for example for distributing images contrary to public morality or based on the legislation for the protection of minors.
Do not hesitate to contact us for further questions concerning portrait rights.
Author: Bart Van Besien