Image rights in galleries: photographing visitors, artworks and artists

01The legal framework for personal image rights

Under French law, the right to one's image is an attribute of the right to privacy, protected by Article 9 of the Civil Code. Every person holds an exclusive right over their image and may object to its capture, retention and dissemination without their consent. This principle applies within the space of an art gallery as in any other location, whether public or private.

The consent of the photographed person is the fundamental condition for the lawful use of their image. This consent must be freely given, informed and specific: the person must know what images will be taken, in what context they will be used and on what media they will be distributed. Consent given for use on the gallery's website does not automatically extend to social media or magazine use. French case law requires strict interpretation of the scope of consent.

The question of consent arises with particular acuteness during exhibition openings, where a professional photographer or gallery team member captures images of crowds, conversing groups and notable attendees. Galerie Perrotin, which organises openings gathering several hundred people, has established a protocol combining signage at the entrance informing visitors of the photographer's presence and the intended use of images, with specific consent requests for individualised portraits and images featuring identifiable persons.

02Exceptions and nuances

Image rights recognise exceptions relevant to art galleries. The right to information permits photographing individuals in the context of a newsworthy event without prior consent, provided the image is used in an informational rather than commercial context. An exhibition opening may be considered a cultural news event, permitting publication of photographs in the specialist press without individual consent from those depicted, as long as the images are not isolated portraits.

Crowd photographs, where no individual is personally identifiable, are generally not subject to image rights. An overview shot of an opening showing an anonymous crowd can therefore be published without difficulty. However, as soon as the image allows identification of a specific person, image rights apply. The boundary between these two situations is sometimes fine, and prudence dictates obtaining consent whenever doubt exists.

Public figures in the art world — exhibition curators, museum directors, prominent collectors — benefit from attenuated image rights in the exercise of their public activity, but these rights are not abolished. Galerie Templon, which regularly welcomes cultural world personalities at its openings, takes care to distinguish between images taken in a professional context, which may be published with greater freedom, and those taken in a private context, which remain subject to consent.

03Copyright on photographed artworks

The photographic reproduction of a copyright-protected artwork constitutes an act of reproduction within the meaning of intellectual property law. The artist, as holder of economic and moral rights over their work, must authorise any reproduction, regardless of its purpose. This authorisation is generally provided for in the contract between artist and gallery, but the dealer must verify that the authorisation's scope effectively covers the intended uses.

The artist-gallery contract should specify the conditions under which the gallery is authorised to reproduce works: on its website, in printed catalogues, in social media communications, in press releases, in online databases and on sales platforms. Galerie Thaddaeus Ropac, which manages a substantial volume of work reproductions across its various communication channels, has established standard contracts that exhaustively detail the reproduction rights granted by the artist to the gallery.

In France, living artists who are members of ADAGP (Societe des auteurs dans les arts graphiques et plastiques) have entrusted that collective management society with managing their reproduction rights. A gallery wishing to reproduce a work by an ADAGP member must obtain authorisation from the society and pay the corresponding fees, unless the artist-gallery contract provides for a direct assignment of these rights. Galerie Kamel Mennour, which represents numerous ADAGP member artists, has developed internal expertise in managing these rights that enables compliance with the legal framework while maintaining fluid communication.

04Rules specific to social media

Image dissemination on social media raises specific legal questions. The terms of service of platforms such as Instagram, Facebook and TikTok provide that any user publishing content grants the platform an extended use licence over that content. A dealer who posts a photograph of an artwork on Instagram therefore grants Meta a use licence over that image, which can be problematic regarding the artist's rights over their work.

Galerie Nathalie Obadia, which has developed an active social media presence, has incorporated into its artist contracts a specific clause authorising the dissemination of artwork images on social media, with mention of the rights transfer these platforms entail. This transparency towards the artist is essential for maintaining a trust relationship.

Photographers commissioned by the gallery to cover events hold copyright over the images they produce. The contract with the photographer must specify the conditions of assignment or licensing of these rights, explicitly including social media use. Galerie Almine Rech, which regularly collaborates with professional photographers for exhibition and opening documentation, has standardised its photography contracts to cover all digital uses.

05Building a pragmatic compliance framework

The dealer need not become a lawyer, but must establish a compliance framework covering the most common situations. This framework rests on four pillars. The first is the artist-gallery contract, which should contain clear clauses on work reproduction rights covering all distribution channels used by the gallery. The second is the contract with photographers, specifying the conditions of rights assignment over images and authorised uses.

The third pillar is visitor information during events. A sign at the gallery entrance during openings, mentioning the photographer's presence and the intended use of images, constitutes good practice that respects the duty of information without excessively burdening event logistics. Galerie Lelong & Co., committed to respecting visitor privacy, has adopted this practice for several years.

The fourth pillar is team training. Every gallery staff member who uses a camera or phone to take images for communication purposes should know the basic rules of image rights and copyright. Galerie Continua, which produces a substantial volume of visual content across its multiple spaces, has trained its communication teams in the legal fundamentals of image use.

06Image rights of artists

The relationship between dealer and artist regarding image rights deserves particular attention. The artist is a public figure in the art world, but has not thereby renounced their image rights. Artist portraits used in press releases, on the gallery website and in catalogues must be produced and distributed with the artist's agreement. Some artists are very attentive to how their image is used and wish to validate every photograph before publication.

The gallery that respects its artists' image rights, informs them of intended uses and obtains their agreement before any distribution, builds a trust relationship that benefits the entire collaboration. Artedusa partner galleries have a digital space where artwork and artist images are presented within a controlled editorial framework, reassuring artists about the use of their image and that of their works before an international audience of collectors.