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Portrait rights around the bend; Max Verstappen lookalike not punished

Portrait rights around the bend; Max Verstappen lookalike not punished

Max Verstappen has been unable to levy an attachment in connection with a promotional film by online delivery service Picnic. It shows a lookalike of him, re-enacting the Jumbo advertisement. He demanded 350,000 euros. The attachment was also requested up to this amount. The Appeal Court of Amsterdam rejected this.

Portrait right and lookalikes

Just as in the commercial of a well-known supermarket, the Picnic commercial shows shopping being delivered but this time by a lookalike. The Court ruled that this was not a portrait as referred to in Section 21 of the Copyright Act:

‘This section of law gives the portrayed person the right to object to the publication of his portrait insofar as he has a reasonable interest in this. This commercial did not show a ‘real’ portrait of [Max Verstappen] however. The role of ‘Max Verstappen’ is after all played by a lookalike of [Max Verstappen].

I wonder whether this is correct. As ruled before in a case between Yellow Bear and Gouden Gids [Yellow Pages] for example, the use of a lookalike of (at the time) Katja Schuurman, did indeed result in the use of her portrait. At the time, it was ruled:

The use of the near-as portrait of Katja Schuurman in an advertisement that so clearly refers to the Gouden Gids is unlawful towards Katja Schuurman. Such use of the near-as portrait compromises the personal own right of Katja Schuurman to determine in which manner and for whom she wishes to advertise. The interest of Katja Schuurman to prevent such use of her near-as portrait is a reasonable interest in the meaning of Section 21 of the Copyright Act.

Parody

The Court ruled in the Max Verstappen case that (other than in the Katja Schuurman case) this is a parody:

The conscious engagement of an actor who resembles [Max Verstappen] and the use in the commercial of the same clothing as [Max Verstappen] during his performances for the media, could give rise to this. However, the commercial was clearly intended to be a parody of the preceding advertising campaign of Jumbo, in which the real [Max Verstappen] plays a role. The second scene of the commercial even shows a Jumbo delivery van that is parked next to the Picnic delivery van to be driven by the lookalike of [Max Verstappen]. In view of these facts it is by no means clear that the creators of the commercial intended that the public actually identifies the actor as being [Max Verstappen] himself. On the contrary, it is more likely that the public views the commercial as a parody and recognises the actor as a ‘lookalike’. All this means that it is very doubtful whether the [appellants] can rely on Section 21 of the Copyright Act.

In short, the commercial looks like a parody. According to the Court, it is then doubtful whether the portrait right can be legally relied on and, if so, what the (legal) consequences are of this.

Cashable popularity?

If a reliance on Section 21 of the Copyright Act is successful, the claimant can in certain circumstances claim reasonable compensation. Well-known Dutch people are to a degree entitled to cashable popularity. What is considered to be a reasonable amount differs from case to case. Verstappen had argued in this case that the value of the fee that he could have demanded for the use of his portrait right and the participation in this Picnic commercial would be reasonable.

The Court did not think it was self-evident however:

In view of the facts of the case it was not obvious to proceed on the basis of the usual fee for the participation of [Max Verstappen] in the commercial. It could after all be questioned whether Picnic would have opted for the personal use of [Max Verstappen] when creating the commercial. After all, it would undo the idea of a parody. In addition, Max Verstappen is not free to collaborate with a competitor of Jumbo, so appeared during the hearing. This means that it can also not be assumed that there has been loss of turnover. Loss of turnover is therefore not the right criterion for the assessment what would be reasonable compensation in this case.

Consequently, the amount of the claim, insofar as this is based on Section 21 of the Copyright Act, was therefore insufficiently substantiated. The argument that there was loss of turnover is not obvious to the Court in view of the fact that it is a parody and because Max Verstappen was not free to contract with a competitor of Jumbo. It was also not argued, or at any rate not sufficiently substantiated according to the Court, that with the publication of the advertisement, commercial interests were harmed in any other way.

The application by Max Verstappen to (be allowed to) levy an attachment was therefore rejected.

By Joost Becker, copyright lawyer

 

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