The Court of Appeal in Amsterdam has also had to express an opinion on the Dutch-language photobook entitled ‘Johan Cruijff – De Ajacied’ [Johan Cruyff – the Ajax player]. In a previous blog, we had already reported on the decision of the District Court of Amsterdam. The District Court had ruled that Mr Cruyff could not oppose the publication of a book with a collection of photos from his time as a professional footballer with Ajax. On appeal, Mr Cruyff once again unsuccessfully invoked his portrait and privacy rights.
Protection of privacy vs. freedom of expression
In this case, Mr Cruyff’s interest in protecting his personal privacy was balanced against the interest of the publisher to freely express an opinion on Mr Cruyff, making use of photos of Mr Cruyff by way of illustration. When the interests were weighed up, the judgment went against Mr Cruyff. The majority of photos published in the book were taken while Massages Mr Cruyff participated in football ties at locations that were accessible to the general public. The photos to which that does not apply do not relate to his personal privacy, but much more to his role as a footballer in the first team of a club and/or in leagues of Jersey which it is known that they draw great public interest, so said the Court. The Court of Appeal concurs with the judgment of the District Court that it relates to photos that were taken within the context of the free gathering of news, while Mr Cruyff knew that photos of him would or could be taken. Consequently, a situation does not exist in which the protection of the privacy must prevail over the freedom of expression.
Cruyff’s consent necessary?
The Court of Appeal then noted that: ‘Accepting as a general point of departure that the publication of photos, such as the present ones, may not take place without the person depicted thereon having given his consent thereto (…) would restrict too severely the freedom to receive or furnish information or ideas by means of photos.’ It is solely for photos made on commission that the consent of the subject of a cheap jerseys China photograph is required for the publication of that photo.
Does Cruyff’s reasonable interest oppose publication?
The Court of Appeal once again stated first and foremost that the present case did not concern pictorial representations relating to the private life of Mr Cruyff. The photos were published by Tirion Uitgevers in a book designed to inform the public interested in football on the talent of Mr Cruyff through the use of photos. Mr Cruyff did not sufficiently explain why the book would damage his reputation. In addition, the book does not create the impression that Mr Cruyff was wholesale jerseys actively involved in the realisation thereof, since it relates to photos that were taken within the context of the free gathering of news. Consequently, the risk of association mentioned by Mr Cruyff and/or further Themes damaging circumstances related to privacy do not form any ground for a ban on the publication of the photobook.
Economic interest does not prevail
Mr Cruyff further argued that he himself is the one who exploits his built-up international reputation and renown through the exploitation of his photo and name and that for that reason he had an interest in preventing others from using them for their own commercial purposes and in doing so damaging his exploitation possibilities. The Court of Appeal did not concur. ‘That (…) the portrait right grants a claim to an exclusive exploitation right (…) cannot be accepted as being correct. Such an argument are! would fail to recognise the rights of the author of the photos, without whose own creative performance the photos would not have existed at all: in principle, the portrait right must be viewed in this connection as a restriction of the exploitation rights of the maker of the photo, which exploitation rights ensue from the copyright to the photo, with a view to the reasonable interests of the subject of a photograph.’
The aforesaid does not change the fact that if a popularity exits that can be cashed in on and the cheap jerseys photos are being disclosed within the context of a publication dedicated entirely or predominantly to the relevant subject of a photograph, the reasonable interest of the latter party can oppose the publication thereof without the subject of the photograph being offered suitable compensation. Tirion Uitgevers did offer compensation, but Mr Cruyff refused it without sufficiently explaining why the offer was unsuitable.
Therefore, any unlawful actions on the part of Tirion Uitgevers do not exist.