Image rights: the four questions before you publish a photo
Ownership of the file is not permission to publish it. Portraits may only be distributed or publicly displayed with the consent of the person depicted, consent is presumed where they were paid for posing, and for ten years after death the relatives' consent is required. Four questions settle almost every case.
The four questions
1. Who made it? The photographer holds rights in the picture, and paying for a shoot does not automatically transfer everything. What you may do with the file is whatever was agreed in writing.
2. Who is in it? Portraits may only be distributed or publicly displayed with the consent of the person depicted. That is a separate right from the photographer's, and it belongs to the person, not to whoever paid.
3. Was anyone paid? Consent is presumed in case of doubt where the person received payment for being photographed, which is why model contracts and payment records matter.
4. Is the person still alive? After death, the relatives' consent is required for 10 years. Spouses or registered partners and children count as relatives, and where there are none, the parents.
Where a small business trips
The team photograph is the usual case. A picture taken while someone worked for you does not carry consent for use after they left, and the safest practice is a written note at the time saying what the picture will be used for and for how long.
The second is the customer in the background. A photograph of your premises with 3 recognisable customers in it contains 3 separate consent questions, and none of them was answered by the customers walking in.
The third is the stock photograph on a listing. Google asks for profile pictures that show the business without significant alteration, and a picture of somewhere else fails that as well as raising a rights question. A phone photograph you took yourself has 1 rights holder and 0 licence fees.
| Question | Whose right | Note |
|---|---|---|
| Who took the picture | Photographer | Written agreement decides use |
| Who is recognisable in it | The person depicted | Separate from the photographer |
| Was there payment for posing | The person depicted | Consent presumed in case of doubt |
| Has the person died | Relatives | Consent required for ten years |
What to keep on file
For every published photograph, note who took it, what was agreed, and whether recognisable people consented. Three lines per picture, and a folder of 20 pictures becomes 60 lines you can find in a minute when a question arrives.
Then check the archive when someone leaves. That is the moment consent most often lapses, and it is also the moment nobody is thinking about the website.
Questions and answers
I paid the photographer, is the picture mine?
Do I need consent from customers in the background?
What about a former employee?
How long after death does this run?
Sources
- Section 22 Kunsturhebergesetz (KunstUrhG) Consent, the presumption on payment and the ten year period
- Google Business Profile Help, Add photos Why a picture of somewhere else fails on the platform side too
