Who: Court of Appeal Amsterdam, Max Verstappen (Verstappen), Mavic S.A.R.L. (Mavic) and Picnic B.V. (Picnic)
Where: The Netherlands
When: 2 June 2020
Law stated as at: 30 June 2020
Online supermarket Picnic published an online advertisement in 2016, showing a lookalike of Formula One driver Verstappen, wearing a similar racing outfit as Verstappen and delivering groceries in a delivery van of Picnic. The ad was meant to be a parody of the advertisements of supermarket Jumbo. Verstappen, the youngest debutant in the Formula One racing history, appears on a regular basis in the television advertisements of Jumbo, where he delivers Jumbo groceries in its Formula One racing car.
Verstappen, together with its agent Mavic, finds the advertising video an infringement of its portrait rights. They demand Picnic to cease the publication of the video or any other image of Verstappen and pay a compensation of damages. Reason for the proceedings is whether Picnic infringed Verstappen’s portrait rights or whether Picnic otherwise acted unlawfully against Verstappen by the publication of the video showing Verstappen’s lookalike, and, as a result, should pay compensation of damages.
Article 21 of the Dutch Copyright Act prohibits publication of a portrait not made at the instructions of the portrayed person, in so far as a reasonable interest of the portrayed person opposes against publication.
The court of first instance ruled that Picnic acted unlawfully against Verstappen by publication of its portrait and entered judgement that Picnic pays EUR 150,000 to Verstappen as compensation of its damages.
Ruling of the Court of Appeal
Contrary to the court in first instance, the Court of Appeal determines that the video with the Verstappen lookalike does not qualify as a portrait in the sense of article 21 Dutch Copyright Act. Although the appearance of the lookalike evokes the image of Verstappen, the Court of Appeal considers that it is clear for viewers of the video that it is a parody of Verstappen’s appearance in the Jumbo advertisements. Moreover, as there is no doubt that (the image of) Verstappen himself is depicted, the Court of Appeal rules that the protection of a portrayed person under the Dutch Copyright Act does not extend to the publication of certain features of the appearance of a person. This also applies if the association is deliberately created.
The Court of Appeal furthermore considers that Picnic may still act unlawfully towards Verstappen, if the publication of the video would injure Verstappen’s reputation or harm any business interests in relation to its image. According to the Court of Appeal, no circumstances came to its attention which would lead to the conclusion that Picnic acted unlawfully towards Verstappen, including no substantiation of real damages to Verstappen. The Court of Appeal, therefore, ruled that there is no legal ground for Picnic to pay compensation of Verstappen’s damages.
Why this matters:
This ruling made clear that using a lookalike in a video as parody of a competitor’s advertising, even if certain features of the appearance of a person are used, does not per se qualify as a portrait, if there is no confusion among the public that the person itself is not depicted. Verstappen may take an appeal to the Supreme Court.