10 do's and don'ts when publishing portraits
The portrait right is a complex right. There are differences in editorial and commercial use, but the distinction between public and non-public persons is also essential. Therefore, take note of the following 10 do's and don'ts for every image user.
1. The discloser is responsible
The publisher, the party that publishes the portrait, is always responsible for that publication and therefore also liable for any damage suffered by the person portrayed as a result of that publication. Regardless of any agreements made with the party that supplied the portrait photo. You could of course recover any damage from that party if the fault was theirs. For example, when the description of the image turned out to be incorrect in the database.
2. Check the information in the image bank
When you use a photo portrait from a third party, such as an image bank, it is good to know what they say about the use of a portrait. For example, the context of a portrait is sometimes important when considering whether you can publish the portrait or not. If permission has been requested from the person portrayed, how far does that permission extend? In other words: the fact that a portrait is in an image bank does not mean that it can be used indefinitely.3. What does a Model Release or Quitclaim mean?
If permission is obtained from the person portrayed, this is usually laid down in a Model Release Form or Quitclaim. The Dutch term for this is Model Release Statement. It states that the person portrayed gives permission for certain forms of publication. The more specific, the better, but usually only a distinction is made between permission to use the portrait commercially and / or editorial. A signed Quitclaim is a contract. The person portrayed can no longer withdraw the permission.
4. Using the right context
In all cases, an unreleased portrait must be used in the correct context. Therefore, pay close attention to the description of the image bank. Do not use the portrait in a context other than it was taken. After all, we would rather not be put away as an alcoholic ourselves, if we drink a glass of wine on the terrace on a Friday afternoon.
5. Reasonable Interest - Advertising and Commercial Use
When publishing a portrait, the basic interest of the person portrayed in objecting to the publication of the portrait must be taken into account. If a portrait is used for an advertisement or a similar expression, the interest of the person portrayed quickly becomes more important. It is a trade-off between the interest of the person portrayed and the interest of the party making it public. A person does not just have to accept to be "the face" of a company, service or product or be associated with it. This assessment is no longer necessary if there is an clear quit claim.
6. Reasonable interest - privacy and editorial use
7. Consent of the person portrayed
Because it is the responsibility of the publisher, you may want to have as much certainty as possible. If the image bank has not arranged a Quit claim or if the content thereof is unclear or if the context of the portrait has not been clearly defined, making the use risky, then you as a user can and may still ask permission from the person portrayed. This gives the most security. Have a quit claim signed for the situation in which you want to use the portrait, so that the permission can no longer be withdrawn.8. Celebrities
Celebrities must tolerate more than other people. Portraits of famous persons may be used in a journalistic context, in which they serve the public debate. Sometimes even when it comes to tabloids. But photos of the strict private sphere, taken in the person's house or garden without the permission of the celebrity, are usually not included. Again, a balance of interests must be made. In addition, famous people, such as football players, presenters and artists, can have a redeemable popularity. This means that they can be entitled to a (higher) compensation when their portrait is used. Often because otherwise they could have sold the photos themselves. If a famous person possesses this redeemable popularity, this person is entitled to an "appropriate compensation" when using the portrait. The redeemable popularity in some cases does not apply to politicians and other people with a public function.
9. Parody
Portraits of public persons may also be used as a parody. Again especially when this is in the context of news, current events or the public debate. Again, there should be no disqualifying context. Note that when a parody is used in a commercial context, such as an advertisement or similar expression, the parody is often not allowed.
10. Commissioned photo portraits
A. When you commission a portrait for a publication in, for example, a newspaper, the person portrayed knows what the image is used for and with that you have the required permission. The same applies to the photographer, who authorizes the publication by approving the assignment.B. If you want to publish a photo portrait from the image bank (which was previously commissioned for another medium) in a newspaper or magazine, then permission is again required from the person portrayed and the photographer. We are talking about a new license here.
