Understanding portrait rights: in which cases do you need permission to publish images featuring individuals?

Portrait rights, which govern the use of an individual's likeness, are crucial for photographers, videographers, and anyone involved in capturing or sharing images of people. The basic rule in portrait law is straightforward: photographers must obtain consent from the person they wish to photograph or film. This consent can be verbal or written, but to avoid future disputes, written consent is highly recommended.

Consent: required or not?

While consent is typically required, there are notable exceptions to this rule:

• Public places: If you are in a public place, it is generally assumed that you give tacit permission to be photographed or filmed. However, there are distinctions to be made:
  • Main subject: If you are the main focus of the photo or video, explicit consent is still necessary. For example, if you're prominently featured at a festival, your consent is required for that image to be published.
  • Incidental presence: If you are not the main subject and are just part of a general scene, such as an atmospheric shot of a park or a crowd, consent is not required.
• Crowds: When the image captures a large group of people, such as a concert or festival crowd, individual consent is not needed.
• Public or legitimate interest: In situations where capturing an image serves a public or legitimate interest, consent is not required. Examples include documenting a criminal offence or using images for informational or advertising purposes. Here, the interests of the organisation or photographer must be balanced against the privacy rights of the individuals depicted.

Consent for use and publication

There is an important distinction between consenting to be photographed and consenting to the publication of that photograph. Consent for both actions must be obtained separately and explicitly. Even if someone agrees to be photographed, they have the right to withhold permission for the photo to be published. Moreover, individuals have the right to withdraw their consent for future use of their image at any time.

Recognisability and consent

An essential factor in determining the need for consent is the recognisability of the person in the image. Recognisability is assessed based on whether the individual or others can identify them, even if their face is not fully visible. Distinctive features such as body posture or hairstyle can contribute to recognisability.

Violations of portrait rights

A person's portrait rights are violated if:

• A photo or video is taken without their consent.
• The image is used for unauthorised purposes.

If you believe your portrait rights have been violated, you can request the removal of the image from the photographer or distributor. If the image is online, such as on social media platforms, you can report it to the platform administrator.

Protecting yourself as a professional photographer, videographer or business 

Given the complexities surrounding portrait rights, it is wise to consider insurance options that protect against potential legal issues. Professional liability insurance and legal assistance cover can provide coverage for legal fees and potential settlements arising from disputes over unauthorised use of images. These types of insurance can be beneficial for photographers, businesses, and individuals who frequently find themselves in situations where portrait rights issues may arise.

For more information on how to safeguard your rights and assets, contact us so we can discuss the right insurance options equipped to address portrait rights and related legal concerns.

Understanding and respecting portrait rights is essential for balancing the interests of photographers and the privacy rights of individuals. By following these guidelines and considering appropriate insurance coverage, photographers can ensure that they operate within legal boundaries and maintain ethical standards in their work.