A campaign by the Lowlands equivalent of Yellow Pages used TV personality Katje Schuurman in a yellow trouser suit. A competitor’s ad used the rear view of a female dressed in a similar trouser suit. Could Katja successfully sue for beach of ‘portrait’ rights?
Topic: People in advertising
Who: Katja Schuurman, Gouden Gids (Yellow Pages) and iLocal
Where: The District Court of Breda, The Netherlands
When: June 2005
What happened:
We have a report from Lisette Heslenfeld of Dutch law firm Steinhauser Hooganraad of an important judgement on look-alikes in advertising.
The Dutch Yellow Pages Gouden Gids had just completed a substantial advertising campaign featuring the well-known Dutch TV personality Katja Schuurman ("Katja"). She was dressed in a yellow trouser suit printed with pages from Gouden Gids and pointing at an address in the directory. Posters of this picture were put in all over Holland.
Gouden Gids competitor, iLocal, launched its own campaign immediately afterwards using a yellow poster with the caption "The other side of advertising in the Gids". The poster showed a rear view of a Katja lookalike dressed in a very similar yellow trouser suit, but this time printed with bank notes. The resemblance to Katja was created by the fact that from the back the woman pictured had the same stance, hairstyle, clothing and shoes.
Gouden Gids injunction bid
Gouden Gids sued and applied for an interim injunction banning iLocal's further use of the image in its advertising pending trial.
Under Dutch law, an individual can prevent others from publishing their likeness or "portrait", but the question arises as to whether this extends to use of look-alikes. In this case, the judge was emphatic that it do so extend. In his view, once a person can be identified by certain factors, then they can exercise their "portrait" rights to prevent unauthorised use of their likeness.
The factors concerned here need not be purely physical. Other factors such as high heels and the fact that Katja's frontal view appeared on every Gouden Gids ad are factors which would lead the public to assume that the iLocal image had something to do with her.
On that basis, an injunction was granted against iLocal.
Why this matters:
Steinhauser Hooganraad, have speculated as to whether iLocal could have avoided the grant of an injunction by including a disclaimer in the ad along the lines of "The woman depicted is not Katja Schuurman."
Their view, and we believe the position would be the same in the UK in similar circumstances, is that it would not have helped. The attention of the public would still be drawn by the association with the Katja Schuurman theme in the Gouden Gids advertising and such an association could not be dispelled by such a disclaimer.
