Photo Rights – What You Can and Cannot Do with Photos
A photo rarely has just one rights holder. The photographer, the person pictured, the trademark owner, the agency—everyone has a say. We sort out who is entitled to which rights before things get expensive.
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The Starting Point
Why a Single Photo Touches on Three Areas of Law
The most common misconception: “I paid for the picture, so it belongs to me.”
A single photo is typically subject to several rights at the same time, and these rights belong to different people. Anyone who overlooks this obtains one permission and believes that everything is settled—while the second and third permissions are still missing.
Copyright belongs to the photographer. It arises the moment the shutter is released, without registration or any special notation. It cannot be transferred; only rights of use can be granted—and only to the exact extent that has been agreed upon. The law distinguishes between photographic works involving creative effort and simple photographs, such as product shots. Both are protected, but for different durations.
The right to one’s own image belongs to the person depicted. It is independent of copyright. The photographer can grant you every possible right of use in the world—but if the person depicted has not given consent, you still may not publish the image.
Data protection has come into play since the GDPR, because a photograph of a person constitutes personal data. The relationship between the GDPR and the older Art Copyright Act has not yet been conclusively clarified. In practice, this means that anyone relying solely on one of the two regulations is on shaky ground.
And then there’s the image content. A logo on a T-shirt, a protected building facade, a branded product at the center of the image, a third-party artwork on the wall—each of these may require its own permission.
Licenses
Read the terms of use before you need them
A license is never a free pass. It always has limits—but you don't realize that until you've crossed the line.
Every image license has four aspects, and each one can be a pitfall. Check them in this order before you use an image.
Objectively – for what purpose
Websites, print, social media, advertising, and packaging are separate types of use. A license for a website does not automatically cover Instagram Reels. A particularly tricky point: “editorial use” excludes advertising—and stock photo sites often only note this in small print.
In terms of time—how long
Time-limited licenses expire without anyone sending a reminder. The image remains online, but the permission has expired. Anyone who works with time-limited licenses needs a list of expiration dates—otherwise, a violation occurs automatically.
Spatially – where
Licenses limited to Germany conflict with the Internet, which knows no borders. This becomes an issue for campaigns run internationally and for online stores that ship abroad.
Simply or exclusively
A photographer may grant a simple license as often as they like—your competitor can use the same image. Only an exclusive license prevents others from doing so. Anyone launching a campaign should know exactly what they’ve purchased.
Added to this is an obligation that is almost always overlooked: attribution. The photographer has the right to be named as the author. Failure to provide attribution constitutes a separate infringement—in addition to the unauthorized use. Case law regularly awards a surcharge on top of the license fee for this, often amounting to one hundred percent. This doubles the claim, even though only the credit was missing.
Costly Mistakes
Five Phrases That Cost a Lot of Money
Each of them sounds reasonable. None of them is correct.
The absence of a watermark does not constitute approval
Protection takes effect automatically upon creation, without any notation or registration. Even an image from Google Images belongs to someone—the search engine shows results; it does not grant any rights.
Attribution does not replace a license
Anyone who attributes a work but does not have the rights to use it has still committed an infringement—and has immediately put the copyright holder on their trail. Attribution and licensing are two separate obligations.
Posing does not constitute consent to publication
Anyone who looks into the camera for a club photo has not thereby consented to its use for advertising purposes. Consent extends only to the extent that the purpose of the photograph was apparent at the time it was taken.
Deleting an account ends your use of the service, but not your entitlement
Claims for damages arising from past conduct remain in effect, and the risk of recurrence is eliminated only upon the signing of a cease-and-desist declaration. Until then, a preliminary injunction may be granted.
People in the picture
When You Can Take and Publish Photos of People
The rule is strict, the exceptions are narrow—and are regularly stretched too far.
The rule is: Portraits may only be distributed or publicly displayed with the consent of the person depicted. Taking the photograph itself is usually not a problem; publication is the critical step.
There are exceptions to this principle, which are constantly interpreted too broadly in everyday life. In the case of images of contemporary history, a careful balance must always be struck—holding public office does not make anyone fair game permanently or in every situation. People who appear incidentally alongside a landscape or a building are only considered incidental if the image would look essentially the same without them. At gatherings and parades, the focus is on the crowd as a whole, not on a single individual singled out in a close-up.
And even if consent has been given, it applies only to the purpose for which it was granted. A portrait for a club’s website does not justify an advertising campaign. In the case of children, both legal guardians must generally give their consent.
The handling of employee photos is particularly relevant for companies. These photos are provided voluntarily and can be withdrawn—and whether they must be removed after an employee leaves depends on the specific agreement. A verbal agreement does not help anyone in this regard.
Consent must be in writing, with the purpose, medium, and duration clearly specified. For photo shoots, this should be included in the contract, not in a WhatsApp message. Anyone who regularly photographs people needs a form—not just trust.
We discuss the right to one’s own image from the perspective of the person depicted—that is, when you find yourself online without having been asked—in detail elsewhere.
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Received a warning letter
The warning letter regarding the photo is in the mailbox
Don't pay, don't sign, don't ignore it—check it first.
Warning letters regarding photos rarely come as a surprise. Photographers and photo agencies use automated image recognition to scan the web for their images. If a match is found, you’ll receive a form letter. This doesn’t automatically mean the claim is unjustified—but it explains why such letters are often worded in general terms and don’t always stand up to scrutiny.
The following points should be examined in this order: Is the sender actually the rights holder, and can they prove it? Did you actually use the image, or was it embedded? Have the claims already expired? And is the amount correct—or is the underlying licensing table simply inappropriate for this image?
The last point is almost always worth pursuing. The calculation is often based on fee schedules for professional image use. For simple photographs that have never been licensed on the market, this can be challenged. The same applies to attorneys’ fees if the estimated value in dispute is set too high.
The most important piece of advice: Never sign the attached cease-and-desist letter as is. It’s usually too broad and binds you permanently. Deadlines are short, but they can almost always be extended.
The Other Side
You are a photographer, and your photo is being used without a license
We work on both sides—which is why we know what arguments the other side will bring up.
If an image is used without authorization, you are entitled to several remedies simultaneously: an injunction against future use, information regarding the scope and duration of the use, and damages for past use. In practice, damages are almost always calculated using the “license analogy”—that is, based on what a reasonable licensee would have paid.
Two points are regularly overlooked in this context, and both significantly increase the amount. First, the surcharge for failure to credit the author, if your name was not provided. Second, the long statute of limitations: In addition to the standard three-year statute of limitations, there is a residual claim for damages that allows you to pursue even older instances of use—though limited to the amount the infringer has saved.
What influences the outcome the most is the documentation. A screenshot showing the URL and date, proof of your authorship via raw data, and an overview of your previous licensing rates. If you can substantiate your own market rates, you’ll be in a much stronger negotiating position than if you rely on a general table.
Procedure
How We Handle Your Case
Four steps, and at each one, you'll know exactly where we are.
Save
A screenshot showing the address and date, along with license documents and correspondence. Without a backup, every assessment becomes mere speculation.
Sort by Right
Who owns what: the author, the person depicted, the trademark owner. Only once that is clear can we determine who has what rights.
Determine Position
Defend or enforce, out of court or through summary proceedings—and what each option realistically costs.
Implement
Draft a statement, quantify the claim, and negotiate. And if necessary: file a lawsuit or seek a preliminary injunction.
Send us the photo and the letter—we'll let you know what your situation is.
From Real-World Experience
What it's like in your industry
Six combinations that regularly make their way onto our table.
Agency
An image from the pitch makes its way into the case study and from there into the social media post. The license was valid only for the presentation. The agency—not the client—receives a warning letter.
Online Store
Manufacturer images are imported without anyone verifying that they have been approved. The situation becomes critical when those same images are automatically displayed on marketplaces and price comparison sites.
Creator and Influencer
Third-party images in reposts, fan art in the feed, a branded product front and center in a photo. Add to that the requirement to label content as soon as advertising is involved—two topics, one post.
Organizer
Event photos featuring guests. The sign at the entrance is only of limited help; it does not cover close-ups of individual visitors. More is needed for promotional purposes the following year.
Photographers
Rights of use are agreed upon verbally and later recalled differently. In the absence of a written agreement, in case of doubt, only what is strictly required by the purpose of the contract applies—which is usually less than the customer assumes.
Models
A photo shoot in exchange for compensation without a clear contract: Who is allowed to use the photos, for how long, and for what purpose? Who is allowed to edit them, and what happens if the agreement is revoked?
Your Team for Questions About Photography Law
Attorney
Juliette Sarvan de Castro
Attorney
Patrick Rehkatsch
"Experienced. Strategic. Assertive.
We solve your legal challenges."
Attorney
Juliette Sarvan de Castro
Attorney
Patrick Rehkatsch
Your Team at Team Fotorecht
Frequently Asked Questions
No. The image search only shows where an image can be found—it does not grant any rights. In practice, the best solution is a written agreement that explicitly addresses the situation in the event of termination.
You have acquired rights of use, not the copyright. The copyright remains with the photographer and is non-transferable. The scope of your rights is specified in the contract—and if nothing is stated there, in case of doubt, only what is strictly necessary for the purpose of the assignment applies.
The claim consists of several components: the notional license fee, often a surcharge for failure to credit the author, and the opposing party’s attorney’s fees. The range is wide and depends heavily on the image, duration of use, and reach. That is precisely why it’s worth reviewing the claim—it’s not uncommon for the calculation to be open to challenge.
No. Deleting the image ends its use, but it does not eliminate liability for past damages or the risk of recurrence. Without a cease-and-desist letter, the other party can still take legal action. And the image must also be removed from caches, archives, and data feeds.
As a general rule, yes—the exceptions are few and far between and are often overestimated. It’s not mandatory to have written consent, but in the event of a dispute, you’ll have to prove you had it. Anyone who regularly takes photos of people should use a consent form.
That depends on what was agreed upon. Consent may be revoked, although the revocation must be justified if the use was contractually authorized. In practice, the best solution is a written agreement that addresses the case of
In principle, yes. Attribution may be waived, but this must be expressly agreed upon. If attribution is omitted without such an agreement, this constitutes a separate breach—resulting in a significant increase in the amount of damages.
The standard statute of limitations is three years from the date of discovery. After that, a limited claim for residual damages may still be considered, based on the savings the infringer has realized. Thus, past uses are not automatically settled.
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