Filming a video and publishing it without considering image rights is one of the most common legal errors among artists and creators. It’s not a theoretical problem: there are real cases of claims over performance videos, creative process documentaries and social media clips that included people without their authorisation. Understanding the basic rules avoids serious trouble.

Who has image rights?

Every person has the right to their own image — it is a fundamental right enshrined in Spain’s Organic Law 1/1982 of 5 May on civil protection of the right to honour, personal and family privacy and one’s own image, and in EU Regulation 2016/679 (GDPR), directly applicable across all EU member states since 25 May 2018. The GDPR is implemented in Spain through Organic Law 3/2018 (LOPDGDD).

This means that, in principle, you need authorisation from any person who appears identifiably in a video if you intend to use it beyond strictly private purposes.

When you need authorisation (and when you don’t)

You need authorisation when:

The person is identifiable (their face is clearly visible).
The use is commercial (sale, advertising, promotion of a product or service).
The use is professional (company social media clip, promotional video, documentary).
The person appears in a private or intimate context.
The use could harm their reputation or public image.

You do not need individual authorisation when:

The person appears incidentally in a public scene (a crowd at a concert, a busy square): if nobody is the focus, GDPR admits a degree of use. But “incidental” means literally in the background, not in the foreground.
It’s a public figure and the video relates to their public activity (a politician at a public event, a musician on stage at a public concert). Even here there are limits: public figures retain privacy rights outside their public sphere.
The footage is informational or journalistic and relates to a matter of public interest.

The model release

When you need to film identifiable people for professional use, they must sign a model release — a written authorisation specifying:

The specific project for which image use is authorised.
The time scope (indefinite use, or until a date).
Territories of use (worldwide, Spain, etc.).
Type of use (commercial, editorial, social media, streaming, etc.).
Whether there is financial consideration or it is gratuitous.
The possibility of revoking consent (important: GDPR allows revocation at any time for personal data, creating tensions with licence contracts).

Public space vs private space

A common confusion: filming in a public space does not mean you can use the images freely.

In a public space you can film without permission (there is no right to prevent capture in a public space), but the subsequent use of those images remains subject to the image rights of identifiable people who appear.

In a private space (theatre, concert hall, gallery, studio) you generally need authorisation from both the space owner and the people you film.

Minors

For minors (under 18), the rule is strict: you need written authorisation from the father, mother or legal guardian, whenever the minor’s image is identifiable. No exceptions for public space or non-commercial use if the image is clearly identifiable.

Image rights in concert and performance videos

Filming your own concert and publishing the video involves three layers of rights:

Your rights as an artist: you have them, you can use the video.
Rights of musicians who appear: if you have other musicians on stage, you need their authorisation for commercial use of the video.
Rights of the audience: if the video clearly captures audience members, the same criteria apply.

In practice, many concerts are filmed with a visible notice at the entrance stating that filming may occur for promotional use. That notice has limited legal value but establishes a context of expectation.

Common practical cases at concerts and performances

Concerts concentrate three rights that are often confused: image rights (LO 1/1982), performer’s rights (neighbouring rights, LPI Arts. 105–113) and copyright over the recording (belonging to whoever holds the camera). Once you understand the differences, practical cases resolve themselves.

Case A: the photographer or videomaker at a public concert

Real question: can I film and distribute material from a concert if I have the organiser’s permission? Is that enough?

The short answer: no, it is not enough. The organiser’s permission gives you access to the space and, at most, logistical authorisation to film. But the organiser cannot assign rights they don’t hold.

There are two layers the organiser cannot authorise on their own:

1. Performer’s rights (neighbouring rights). Articles 106, 107 and 108 of the LPI give performers the exclusive right to authorise, respectively, the fixation (recording, Art. 106), reproduction of fixations (Art. 107) and public communication (Art. 108) of their performances. That means: filming a concert and publishing it requires the performer’s or label’s authorisation — not just the venue’s or festival’s. The only exception is if the artist has explicitly assigned these rights to the organiser in their contract — common in large-format festival contracts, but not universal.

2. Personal image rights. Beyond neighbouring rights, every person (including artists on stage) has image rights. For commercial use of recorded material, additional authorisation is required.

Concrete examples:

Accredited press photographer: the festival or venue gives you a press accreditation. That accreditation typically includes explicit conditions: “images are for editorial use (news, review, information) and not for commercial use.” Publishing photos in a concert review: ✅. Selling photos to a brand or using them for advertising: ❌ without additional artist authorisation.
Videomaker contracted by the organiser: if the festival hires you to make the official video, the festival must have covered the artists’ rights in their performance contracts. Ask for this in writing before filming — if there is a rights issue, the claim could come against you.
Self-filming for your own social media without accreditation: filming and publishing a concert video without authorisation (neither from the venue nor the artist) is technically an infringement of the performer’s neighbouring rights, even in a public space. In practice, most artists tolerate or even appreciate it if the material is quality. But legally, tolerance is not authorisation.
Music video or documentary from concert material: the situation here is clear. Written authorisation from the artist is required. Non-negotiable.

Case B: the artist and videos of their own concert

Real question: can I use videos made of my concert as if they were mine?

It depends entirely on who made them and under what conditions. There is a very common misconception: because you are in the video and it is your concert, you think the images are yours. They are not necessarily.

What you DO have as an artist: performer’s rights over your performance (LPI Art. 105 et seq.). Nobody can commercially exploit a recording of your performance without your authorisation.

What you do NOT automatically have: copyright over the recording or photographs made by someone else. The person holding the camera is the author of the images (LPI Art. 5), regardless of who appears in them or who paid for the ticket.

Concrete examples:

A fan films the concert on their phone and posts it to YouTube: the fan holds copyright over the video; you hold performer’s rights over your performance. Neither can commercially exploit the material without the other. In practice: you can ask them to remove it (you have performer’s rights) or share it and appreciate it (tolerance). If you want to use it on your own channel, ask the fan explicitly.
A journalist or blogger publishes concert video: the content belongs to the journalist for editorial use. You cannot take that video and post it to your Instagram without their permission, even though you are the one in it.
You contracted a videomaker to record the concert: if the contract does not specify rights transfer, the videomaker retains copyright over the recording. You paid for the filming service, not for the rights. The golden rule: every contract with photographers or videomakers must include an explicit rights transfer clause — which uses, for how long, in which territories, and whether it is exclusive or not.
The festival organiser recorded the concert: without a prior agreement, the organiser may hold rights over that recording as a “collective work” if they organised and directed the audiovisual production. If you want to use the footage, discuss it with them — in writing.

The practical rule for artists: if you want concert material to be yours, hire the videomaker or photographer yourself, before the concert, with a contract including rights transfer. Everything you did not commission and contract belongs to someone else.

See also:

Ressona works with Pocallum for professional photography for artists and with LinuxBCN for video production. Get in touch.