Precedent states that a portrait is a representation of a person in which that person is ‘recognizably represented’. It does not matter whether the person has been drawn, photographed or represented in any other way. Less accurate portraits, such as a caricature, may also fall under portrait law.
A portrait is easily created. And once it is, the person portrayed is protected by portrait law. The portrait may not be published without his or her permission.
There is a distinction between commissioned portraits and portraits that are not commissioned. For the first category, permission from the person portrayed is in principle always required. This is not the case with the second category. In principle, the maker may publish the portrait freely, but the person portrayed may act against such publication if he or she has a reasonable interest in doing so. This could be privacy or commercial/financial interest. However, the fear of damage to one’s image is also regarded as a reasonable interest. A judge will weigh these interests against the interests of the maker: for example newsworthiness, freedom of the press and freedom of speech.
Legal advice in cases of infringements of image rights
Nysingh’s lawyers are at home in IP, copyright and portrait law. We work for national and international companies, and for design studios and advertising agencies.
Our specialists will be glad to advise you. In doing so, we always strive for a pragmatic solution. However, if the case requires it, we litigate with verve. We have a great deal of experience with the full range of (international) civil proceedings, such as summary proceedings, proceedings on the merits, ex parte proceedings and seizure proceedings.
Feel free to contact us for specific, practical advice, for example on:
- (potential) infringements of portrait rights at home and abroad
- claiming prohibition, compensation or transfer of profits
- defending against infringement claims by third parties
- drawing up and assessing (international) licensing agreements
- drawing up and assessing quit claims