Who Owns the Right to Someone's Face? Portrait Rights and Bystanders in Influencer and UGC Content

Short answer: two different rights, and a bystander owns one of them

An influencer or UGC creator owns the copyright in the video or photo they film. But a random, recognisable person who appears in the background — a stranger at the next table in a café, a friend in a try-on haul — owns something else entirely: the right to decide whether their own face may be used in commercial marketing. The two rights belong to different people and both have to be respected, regardless of what the brand's usage-rights agreement with the creator says.

This is practical guidance from Make Influence, not legal advice. Use it to understand the framework — get the specific legal assessment of your own content from a lawyer.

Copyright and the right to one's own image are two different things

As UGC Usage Rights Explained covers, copyright in a video or photo arises with whoever films it — the creator, not the brand, unless otherwise agreed. That right is about the work itself: who may copy, edit and distribute the file.

The right to one's own image is something else entirely. It doesn't belong to whoever took the picture, but to the person or people who are recognisable in it. No contract between the brand and the creator can override that right, because the bystander was never a party to it. A usage-rights clause giving the brand "full rights to use the video across all channels" never answers the separate question of whether the stranger at the next table may also be shown — that's an entirely different legal question, and it has to be answered on its own.

The right to one's own image: case law, not a single statute

Unlike, say, the ad-disclosure rules, there is no single statutory provision in Danish law called "the right to one's own image." The right has developed through case law, and today it's supported by the Marketing Practices Act's general clause on good marketing practice.

The clearest example is the Danish Supreme Court's ruling in the so-called Buster Larsen case (U 1965.126 H): an electronics company had used a picture of the actor Buster Larsen in an advertisement without his consent. The Supreme Court held that this violated his right to his own image — even though the company hadn't infringed any copyright, since it legitimately owned the photograph. The problem was the commercial use of his face without his permission, full stop.

Today the principle is backed by Markedsføringsloven (the Danish Marketing Practices Act) § 3, stk. 1, on good marketing practice — the provision that has replaced the former § 1, stk. 1 since the law's 2017 revision. Forbrugerombudsmanden, Denmark's consumer ombudsman, has taken the position in its own practice that using a portrait image of a person in marketing without the depicted person's prior permission is, as a rule, contrary to good marketing practice.

The point that's often missed: the right isn't limited to famous people like Buster Larsen. As one Danish legal overview of the area puts it, it protects "the individual, known or unknown" against improper exploitation of their person. A completely unknown, random person caught on a UGC shoot has exactly the same right as a famous actor to say no to their face appearing in a brand's advertisement.

Portrait images vs. situation images: when does a background person's consent matter?

Danish practice distinguishes between two kinds of image, and the distinction decides whether consent is required as a starting point:

The situation-image exception is what lets a UGC creator normally film on a busy street or inside a shop without collecting consent from every single person who appears in frame. But the exception has an exception of its own: a situation image shouldn't be published if the depicted person could reasonably feel exposed, exploited or violated by it — and that assessment tightens considerably once the image is used in commercial marketing for a brand, rather than sitting in a private holiday album. Some situation images can, per established practice, essentially never be published without consent regardless of purpose — that includes images of employees at their workplace and images of customers inside a shop.

For an influencer or UGC shoot, the practical consequence is: the closer a random person comes to being the actual point of the clip — recognisable, in focus, on screen for several seconds — the more the footage resembles a portrait image of that specific person, and the stronger the case for needing their consent.

Ophavsretsloven § 60: a different, narrower right that's often confused with this one

One important clarification: Ophavsretsloven (the Danish Copyright Act) § 70 gives the photographer their own protected right over the image they've taken — that's the photographer's own copyright, and it has nothing to do with the depicted person's rights. The relevant provision for the depicted person in the Copyright Act is a different, and much narrower, one: § 60 on commissioned portraits. It states that the author (the photographer) may not exercise their right to a commissioned portrait without the consent of whoever commissioned the image.

§ 60 applies specifically to commissioned relationships — for example, a portrait photo a family has themselves commissioned and paid a photographer to take. It isn't the provision that protects a random stranger who unwittingly ends up in an influencer's background. That protection instead rests on the broader, case-law-based right to one's own image described above. The two rights — § 60's narrow commissioning right and the general right to one's own image — are often conflated in popular accounts, but they have different scopes of application.

GDPR adds another layer on top

A photo or video showing an identifiable person is personal data under GDPR — whether that person is the brand's paid ambassador or a complete stranger who happened to end up in the shot. See Influencer Marketing and GDPR: What Brands Need to Know for the general overview of when GDPR is in play in an influencer collaboration.

There's no "household exemption" for a brand to lean on here: GDPR's exemption for purely personal or household activity covers an individual photographing something for their own use — not a brand using the footage commercially. The brand therefore needs a lawful basis under Article 6 to process (i.e. publish) the image of the random person, exactly as with any other personal data.

Here's a point Denmark's data protection authority has already ruled on in a closely related case: in the Hadsund Apotek case (1 December 2021), a business tried to rely on "legitimate interest" as the basis for showing a former employee's image in a recruitment video — and the argument was rejected. Datatilsynet held that using a person's image for marketing as a rule requires consent, and that legitimate interest rarely outweighs the depicted person's own privacy interest in that context. See GDPR's Right to Erasure and a Former Brand Ambassador's Likeness for the full case. The same logic hits a completely random bystander even harder: where a former employee or ambassador at least had some relationship with the brand, a stranger in the background of a UGC shoot has none at all — which makes "legitimate interest" an even weaker basis for including them in the marketing without consent.

Decision framework: blur, cut, or get consent?

IF the person is clearly recognisable and functions as part of the clip's actual point (in focus, on screen for several seconds, close to the camera) → get consent, or blur/cut the person out, before the content is published commercially.

IF the person is only glimpsed fleetingly in the background of an ordinary street or ambience shot, and the footage isn't built around that specific person → normally no consent requirement, but always assess whether the person could reasonably feel exposed by the use.

IF the shoot takes place at a workplace, inside a shop, or somewhere else where employees or customers are recognisable → treat it as a heightened case regardless of how briefly they appear — practice has historically been especially strict here.

IF you're unsure whether someone is the "main subject" or just "part of the scene" → take the safe route and get a quick verbal or written consent, or blur the face in editing. It costs minutes and removes the doubt entirely.

IF the random person later asks to be removed from a published video → comply. Both the right to one's own image and GDPR point the same way here, and no usage-rights agreement protects the brand against a person who was never a party to it.

Hypothetical worked example

The figures and scenario below are made up for illustration only — not a real Make Influence case.

A UGC creator films a 30-second product review at a café for a skincare brand. At the next table sits a stranger who is clearly in frame and in focus for about 8 of the 30 seconds while she talks on the phone. The video is delivered and approved, and the brand plans to run it as a paid Meta ad for three months on a hypothetical media budget of DKK 45,000.

The woman discovers the video when it shows up in her own feed and contacts the brand: she never consented to appearing in an advertisement and asks for the video to be taken down. Because she's clearly recognisable and part of the clip's visual focus for several seconds — not a fleeting part of a street scene — the brand has no real defence: neither the right to one's own image nor GDPR gives it the right to keep running the ad without her consent. The campaign has to stop immediately, and the remaining roughly DKK 30,000 of the planned media budget can't be spent on that clip. Had the creator instead either asked the woman for a quick verbal consent on the spot, or blurred her face in editing — either one a matter of minutes — the whole campaign could have run as planned.

How this differs from the Academy's other rights articles

What the first three rows have in common is that a contract exists between the brand and the depicted person, setting out what may happen with the image. This article's subject is defined precisely by the fact that no such agreement exists at all — and that neither the right to one's own image nor GDPR requires one to.

Make Influence's recommendation

In our experience, it's rarely the rule itself that's hard — it's remembering it in the middle of a busy shoot day. We recommend making it a standing part of any UGC or influencer brief that involves filming in a public place or at a workplace: the creator actively watches for whether a random person stays clearly in frame for more than a couple of seconds, and either gets a quick on-the-spot consent or plans to blur the face in editing. It's a far cheaper habit than discovering the problem after a paid campaign is already live.

FAQ

Is it illegal to film at all if there are strangers in the background?

No. Filming in public places, where other people naturally form part of the scene, is lawful as a rule under the situation-image principle. What requires extra attention is publishing it commercially once a specific person becomes clearly recognisable and part of the clip's focus.

Does blurring the person's face solve the problem?

Yes, as a rule. Once the person is no longer identifiable, neither the right to one's own image nor GDPR's rules on personal data are still relevant to them — both depend on the person actually being recognisable.

Does the same apply if the person is famous or a public figure?

Yes, the principle is the same — the right to one's own image protects, as the Buster Larsen case shows, both famous and unknown people alike. A well-known person may separately carry greater "newsworthiness" that can matter in other contexts (journalism, public debate), but that doesn't change the fact that commercial use in an advertisement requires consent.

Who's liable if a random person complains — the creator or the brand?

Both can in practice be held responsible. The brand is typically the commercial party behind the marketing and has the most to lose from a case. The creator is responsible for the shoot itself and should flag borderline cases to the brand before the material is delivered and approved.

Is this the same rule that covers the creator's own face if the brand wants to use the content in a TV ad?

No. It's a related but separate issue — that one concerns the creator's own name and likeness as a contracting party, not a third party with no agreement at all. See Out-of-Home, TV and Broadcast Usage Rights for Influencer Content for that rule.

Should this be written into the UGC brief?

Yes, it's the easiest way to prevent the problem. Add a short line under the brief's filming requirements: the creator actively avoids letting a random, recognisable person become a clear part of the clip unless consent has been obtained. See the UGC brief template for the rest of what the brief should cover.

Do employees at a shop where a UGC video is being filmed need consent the same way?

Yes, and per established practice with heightened caution. Images of employees at their workplace fall into the category of situation images that can essentially never be published without consent, regardless of how briefly they appear in the clip.