October 2025

Monday, 20 Oct 2025

The Importance of Consent in the Use of Photographic Works and Portraits

Law No. 28 of 2014 on Copyright (“Copyright Law”) defines photographic works as any photo produced using a camera, while a portrait refers to a photographic work that features a human object. Although the Copyright Law regulates (i) the rights of creator and copyright holder, including economic and moral rights, (ii) the prohibition of using photographic works or portraits without permission from the creator or copyright holder, and (iii) sanctions for such violations, in practice, copyright infringement involving photography and portraits remains common in Indonesia.

Two notable recent cases of photographic copyright infringement were: (i) the unauthorized use of a dim sum photo owned by a chef who was a finalist on MasterChef Indonesia and a popular culinary content creator on YouTube by a food business owner; and (ii) the use of a photographic work titled Morning at Prambanan by a well-known hotel chain. The first case was resolved amicably, with the chef clarifying that there was no collaboration with the business owner, who then issued a written apology through social media. Meanwhile, the second case is still undergoing legal proceedings in court.

In addition to these two cases, a violation involving the unauthorized use of a portrait occurred in 2011 between a doctor and a private hospital in Surabaya. The doctor filed a lawsuit for damages at the Surabaya District Court, citing that the hospital management had photographed him without prior notice regarding the concept and intended use of the photo, and without obtaining his prior consent. As a result, the doctor was unaware of the existence and the use of the portrait until it was used by the hospital for promotional purposes. The claims for damages were granted at both the district and cassation levels, with the Supreme Court ruling that the hospital had violated Article 12 Paragraph 1 of the Copyright Law by using the portrait for commercial purposes without written consent from the object of the photo.

From these three cases, it can be concluded that obtaining consent from the creator or copyright holder, as well as from the object of the portrait, is crucial when using photographic works or portraits. In accordance with the Copyright Law, photographers or copyright holders have exclusive rights to reproduce, distribute, publish, modify, and grant or deny permission for the use of their works by others. Without such permission, the use of photographic works may be considered copyright infringement and subject to legal sanctions.

On the other hand, individuals featured in portraits have the right to control how their image are publicly used, including the right to refuse the use of their photo in advertisements, promotions, or publications without consent. Violations of this right may be considered an invasion of privacy and could lead to claims for damages, as in the case between the doctor and the private hospital in Surabaya.

Based on the above, here are several steps that commercial users can take to avoid copyright infringement and other legal violations:

1. Obtain written permission from the photographer or copyright holder.
2. Obtain written consent from the object of the portrait.
3. Conduct additional checks if the photographic work or portrait was taken at a specific location, to ensure no rights of the property owner or manager are violated.
4. Offer a cooperation agreement in the form of a usage license.
5. Avoid using photographic works or portraits that contain intellectual property belonging to others without permission.
6. Keep all documentation related to permissions, contracts, and communications regarding the use of photographic works or portraits.
7. Credit the creator as a form of respect for their moral rights.

By taking these steps, commercial users can prevent legal claims (civil or criminal), fines and damages, potential harm to business reputation, and public backlash or boycotts.

 

Disclaimer: This legal news serves as general guidance only and should not be treated as legal advice. If you wish to have further information on this topic, please contact  Diyah Ratnajati (dratnajati@rosetini.co.id), or Rosetini Ibrahim (ribrahim@rosetini.co.id).