WHO IS WILMAR DIK?
Wilmar Dik is a professional photographer and cameraman. His specialization mainly lies in corporate photography, portrait photography, and film. You can view his corporate photography at reclamebeeld.nl. His portrait photos are on Mensen.photo and his portfolio can be found at WilmarDik.nl. For corporate films where Wilmar does part of the camerawork, you can check tasfilms.nl
If you have a question for Wilmar Dik, you can submit it for future editions via:
redactie@clipboardmedia.nl
Every photographer has to deal with it: what can others do with your photos? The more professional you are in photography, the more important this becomes. Because others pay you to take and use photos. It is useful to discuss the usage clearly before you deliver the photos. This way, it is completely clear for the user and/or client what they may use the photos you created for.
Admittedly, I have had problems with this as well. Once, when I was taking photos for a large event organizer at a trade fair, they thought it was logical that they could pass those photos on to sponsors without any extra agreements and compensation. I thought and still think differently about that, and so we had a problem because the photos had already been delivered. It is handy to have a clear understanding of what the client can and cannot do with the photos before you take them. I always deliver my photos under the condition that (only) the client may use my photos. Only with an additional agreement may they pass my photos on to other parties. Because if my photos also have value for those other parties, it seems normal to me that I can ask something for the extra value.
The photos you take as a photographer are protected by copyright. This gives you, as a photographer, control over what happens to the photo. You determine where, by whom, and how the photo may be used, and you have the exclusive right to reproduce and distribute your photos. As a creator, you should earn from the use of your photos. Therefore, it is not very wise to participate in a photo competition. Because they want to use your best images without offering any compensation.
In most countries, copyright arises as soon as the photo is taken. The creator of a photo is the owner of the photo. Whether you own the camera is therefore not relevant. You must be a human being. If a monkey takes a selfie with your camera, you, as the owner of that camera, have no copyright on it.
Photographers can sell usage licenses for their images, establishing specific conditions for use. This can relate to the duration of use, the geographical area, and the medium in which the image may be used (such as print, digital, advertising). Licenses can vary from a one-time payment for unlimited use within agreed conditions to agreements for each specific use. These agreements help photographers prevent unauthorized use.
Personality Rights
In many countries, photographers also have moral rights, such as the right to be recognized as the creator (attribution) and the right to prevent their work from being distorted in a way that could harm their reputation. These rights are often non-transferable, meaning that the photographer retains them even if they transfer the copyright.
Portrait Rights
I often hear it as a joke: Yes, but I have portrait rights! But what is that actually? In the Netherlands, portrait rights fall under copyright and give the depicted individuals in the photo the right to oppose publication.
The Dutch portrait rights distinguish between portraits made on commission and those made without commission:
Commissioned Portraits:
For portraits made on commission, the depicted person has a stronger right to decide on publication. The photographer cannot simply publish the portrait without the consent of the depicted person. Conversely, the depicted person can, in some cases, offer the photo for publication without the photographer's consent.
Non-Commissioned Portraits:
For portraits made without commission, for example by a journalist or street photographer, the depicted person also has rights, but these are weighed against freedom of expression and press freedom. In this case, the creator may generally publish the portrait unless the depicted person has a 'legitimate interest' in preventing publication. This interest can be a privacy interest or a commercial interest. Famous individuals, such as actors or athletes, can object to unwanted commercial use of their image. This is because their likeness may represent economic value. Without consent, third parties may not benefit from this. The existence of a legitimate interest is assessed by the judge on a case-by-case basis.
For portraits made without commission, the question often arises whether the creator can invoke freedom of expression and press freedom. This right is weighed against portrait rights and the privacy of the depicted person. In cases of news value or artistic value, publication may be justified, even if the depicted person objects. However, if the portrait is used for purely commercial purposes, consent is always required.
This photo of my niece was taken (with permission for publication) for my portrait portfolio on mensen.photo.
Although portrait rights protect the rights of the depicted person, copyright and personality rights remain with the photographer. Copyright and portrait rights thus coexist. Whether the publication of a portrait is allowed must be assessed by the judge on a case-by-case basis in case of doubt.
Are your photos being used by others without permission?
Copyright infringement occurs when someone uses a photo without the photographer's permission. Photographers can then demand compensation. If you are a member of an interest organization with a legal department, you can easily seek help. You can send a first letter for copyright infringement yourself. Sample letters are easily found online. If the amount you want is not paid within a certain period, you can transfer the entire case to a legal department of, for example, the NVJ or DuPho.
As a photographer, you can determine the amount of compensation yourself. This is not a fine, but compensation for lost income. This amount is based on your usual licensing rate. If you want to determine the amount, ask yourself: what would I have asked if the party using the photo had asked for permission in advance? The most important thing is that you can substantiate this amount and that it is not just pulled out of thin air.
No VAT is charged on the compensation, so you do not need to send an invoice for this. Also, the other party does not obtain usage rights by paying the compensation. Do they want to continue using the photo? Then you can grant a separate license for that.
Stock Photography and Online Platforms
Some photographers work with stock agencies. Not that you become financially much better off, as making and selling photos through stock agencies seems more like volunteer work financially. But if you offer photos through stock, it may also be that users of your photos have purchased usage rights through that stock agency. So if there is a photo of you online without you having agreed on usage rights? It may still be that this party obtained usage rights without you through a stock agency where your work is for sale. Before you demand compensation from a party, it is wise to first check whether they obtained the usage rights to your photo through another route.
Do you want more information or specific legal help?
Don't come to me, because I am a professional photographer and not a lawyer. For more information about specific rights and legal issues, professional organizations can help you.
Image rights give photographers control over their work and ensure they are fairly compensated. As a photographer, you must ensure that you make clear agreements with the parties that want to use your photos. By properly regulating usage rights, photographers can protect their creative work and benefit from their images.
