Street Photography and Copyright

A recent trend involving non-consensual street photography in Indonesia has stimulated public discussion on image rights and commercial use. While much of the debate has centred on privacy, the case also raises important questions under Indonesia’s Copyright Law (Law No. 28 of 2014). Our blog will go through the copyright dimensions of street photography, particularly when images are uploaded, distributed, and commercialised through digital platforms.

The Issue: Photographs Taken Without Awareness

It’s almost common now to see street photographers take pictures of individuals; often joggers or runners; in public spaces without the individual’s knowledge or consent. These photographs are then uploaded to platforms like FotoYu, where they become publicly visible and available for purchase.

Some subjects may not wish to be photographed or for their image to be displayed publicly. This raises a fundamental question: who controls the use of the image?

The answer lies in the distinction between the photographer’s copyright in the photograph itself and the subject’s rights over their own likeness.

Copyright Ownership in Photographs

Under Indonesia’s Copyright Law, a photograph qualifies as a protected work the moment it is created and fixed in a tangible form. The photographer holds the copyright as the creator, granting them exclusive economic rights to reproduce, distribute, communicate to the public, and commercially exploit the image.

This protection applies regardless of whether the photograph is taken in a public space or captures strangers. The creative choices involved in composition, lighting, angle, and timing are sufficient to establish originality.

However, copyright ownership in the photograph is distinct from any rights the photographed subject may have over their own likeness. This becomes critical when images are commercialised.

Portrait Rights: The Subject’s Protection

Indonesia’s Copyright Law includes specific provisions on portrait photographs. Under Article 12, a portrait; defined as a photograph depicting the likeness of an identifiable person, carries additional requirements that limit how it may be used.

The publication, reproduction, or distribution of a portrait requires the consent of the person depicted, or their heirs if deceased. This means that even though a street photographer may own the copyright in their photograph of a runner, they cannot freely publish or commercialise that image without the subject’s consent if the subject is identifiable. The subject’s likeness is protected, and commercial exploitation without permission may give rise to legal claims.

For platforms like FotoYu, this creates a compliance gap. Images uploaded by photographers may technically infringe the portrait rights of the individuals depicted, exposing both the photographer and the platform to potential liability.

Economic Rights and Commercial Exploitation

The Copyright Law grants photographers several economic rights, including:

• the right to reproduce the work,
• distribute copies,
• display the work publicly,
• communicate the work to the public (including online distribution), and
• license or transfer these rights to others.

When a platform facilitates the sale of photographs depicting identifiable individuals, questions arise regarding whether the necessary consents have been obtained; both from a copyright licensing perspective and under portrait rights provisions.

Platforms that enable third parties to upload and sell photographic works should ensure their terms of service clearly address copyright ownership, licensing scope (exclusive or non-exclusive), permitted uses by purchasers, revenue sharing and royalty arrangements, procedures for handling infringement claims, and confirmation that portrait consent has been obtained where applicable.

Moral Rights and Attribution

Indonesian copyright law recognises moral rights that remain with the creator even if economic rights are transferred. These include the right to be identified as the creator (attribution) and the right to object to modifications that would harm the creator’s reputation (integrity).

When photographs are processed through AI systems that crop, filter, or otherwise modify images, platforms should consider whether such alterations might infringe the photographer’s moral rights. Similarly, if images are distributed without proper attribution, the photographer may have grounds for complaint.

AI-Processed Images and Copyright Questions

The involvement of AI tools in processing and matching photographs introduces additional complexity. When an AI system such as the ‘RoboYu’ tool modifies or enhances an image, questions may arise regarding whether the output constitutes a derivative work.

Under the Copyright Law, creating a derivative work based on a copyrighted photograph generally requires authorisation from the original copyright holder.

AI-generated content and copyright remains an evolving area globally. Indonesia’s current framework requires human authorship for copyright protection

Platform Liability and Infringement Risk

Digital platforms hosting user-uploaded photographs face two types of exposure: copyright infringement claims (if users upload images without proper rights or licences) and portrait rights claims (if images depict identifiable individuals without consent).

To manage this risk, platforms should:

• Require users to confirm they hold necessary rights and have obtained subject consent
• Establish notice-and-takedown procedures for infringement claims
• Maintain records of licensing arrangements and user warranties
• Conduct periodic content audits

Commercial and Strategic Insights

1. Clarify Copyright Ownership Early

Businesses commissioning photography or using platforms that aggregate images should establish clear agreements on copyright ownership and licensing from the outset.

Ambiguity can lead to disputes when images are commercialised.

2. Obtain Portrait Consent for Commercial Use

Where photographs depict identifiable individuals, consent should be obtained before publication or commercial exploitation.

This applies even when the photograph was taken in a public space.

Methods include model release forms, digital consent mechanisms, or clear signage at events indicating that entry implies consent to be photographed.

3. Review Licensing Terms

Whether licensing images to a platform or acquiring images for use, the scope of the licence matters.

Consider whether the licence is exclusive or non-exclusive, what territories and media are covered, whether sublicensing is permitted, and the duration and termination provisions.

4. Address Potential AI Processing

If images will be processed, enhanced, or matched using AI tools, ensure agreements address rights to create derivative works, ownership of any AI-enhanced outputs, and limitations on AI processing that might affect moral rights.

5. Register Valuable Works

While copyright protection arises automatically upon creation, registration with the Directorate General of Intellectual Property (DGIP) provides evidentiary benefits and can strengthen enforcement efforts.

6. Consider Enforcement Strategies

Photographers and platforms should have clear procedures for identifying and responding to potential infringement, including monitoring mechanisms and relationships with experts who can advise when needed.

This content is provided for general information only and does not constitute legal advice. For advice on specific matters, contact enquiries@skclaw.id.

Connect With Us

SKC Law advises clients across a range of copyright matters in Indonesia, from registration through to enforcement and commercial licensing.

Our recent work includes advising copyright portfolios, providing guidance on the commercialisation of Indonesian landmark imagery, and advising on copyright in AI-translated voice actor performances.

For enquiries on copyright registration, licensing, or enforcement in Indonesia, contact our team at: enquiries@skclaw.id

[follow us on LinkedIn] for updates on intellectual property in Indonesia.

Submit a custom inquiry via our [Contact Page].