With recent Virgin Active ads in London featuring Messrs Brown and Cameron on bikes, are Europe’s advertisers less likely now to face flak for using politicians? Kim Braber at Hoogenraad & Haak, Amsterdam, looks at a recent Dutch supermarket ad featuring the entire Dutch cabinet and the possible legal ramifications.
The offer is clear: portrait rights and politicians
Advertisers often pull out all the stops on Prinsjesdag [Budget Day], and this year was no exception. The Dirk van den Broek supermarket ad caused quite a controversy. Full-page photographs appeared in all the major newspapers, of the government in the first row of the official government hall Ridderzaal, with the familiar red DIRK shopping bags under their chairs. The title of the ad: “The offer is clear”. But was Dirk van den Broek entitled to just use portraits of the entire government like this?
The Copyright Act provides that the person portrayed can oppose publication of portrait if he has a reasonable interest. This can be a commercial or a privacy interest. Because of his position, a politician cannot commercialise his portrait, so he has no commercial interest. But how about a privacy interest? The answer is yes. The Supreme Court determined in the 1997 Disco dancer case that in principle, everyone always has a reasonable interest in objecting to the commercial use of their portrait.
That includes politicians. Why? The public will associate the person portrayed with the product or service. The Supreme Court held that the public might think that the person portrayed consented to the use of the portrait, seeing it is a display of his public support for the product or service. In that case the person portrayed can object on the basis of his privacy interest.
This Supreme Court interpretation of “reasonable interest” offers scope for Dirk van den Broek: will the public really think that the government is collaborating with a supermarket campaign on Budget Day? Of course not – everyone understands that the government would not do that.
Nevertheless, there is a legal catch in using the government in the Dirk van den Broek advertisement, because in 2005 the District Court of Amsterdam considered that a drawing (also a portrait) of our Prime Minister Jan Peter Balkenende could not be used in a Kijkshop campaign. Kijkshop depicted him in the Mother´s Day campaign as a toddler, with the text: ‘without a salesman it’s cheaper for little Jan Peter’. The public would not have thought that the Prime Minister had given Kijkshop his permission, but the court felt that it would create a (subconscious) association between Kijkshop and Balkenende. That in itself was enough for the court to prohibit the use of Balkenende’s portrait. Strangely enough, the court did not go on to consider the question of whether the public would think that Balkenende had collaborated on the advertisement. Seemingly, the District Court is stricter than the Supreme Court in its Disco Dancer ruling. In our opinion, this judgment was incorrect.
Moreover, the court seems to hold that depicting Balkenende as a toddler and using the abbreviation ‘little JP’ as his first name are denigrating.
Dirk van den Broek took the risk of using the portraits. As they themselves say, the tone of the advertisement was friendly and it would raise a smile amongst the members of the government. They might be right about that, because the Dutch Government Information Service did not take any action. They also kept a low profile last year when Bolletje advertised its biscuits on Budget Day in an advertisement entitled “I want a Bolletje hot air biscuit”, in which they interviewed Wouter Bos. The slogan was: “And that’s what we use to make our biscuits”.
Politicians do not seem to take a one-off, light-hearted action too seriously. The message is clear: be careful when using politicians’ portraits! But more opportunities are often available if the public does not assume it is an expression of support.
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