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18 June 2018
The Amsterdam District Court recently allowed a substantial damages claim following Dutch grocery delivery start-up Picnic's unlawful use of a lookalike of the famous Formula 1 driver Max Verstappen.
In a video ad posted on its website, Picnic employed a lookalike of Verstappen to drive its grocery delivery truck around the Netherlands.
Although the ad was likely intended to indicate that Picnic's delivery service is fast, another reason to employ a Verstappen lookalike may have been the fact that Jumbo, a competing chain of grocery stores with an established position on the Dutch market, had already had the same idea. However, Jumbo had signed the real Verstappen – and not a lookalike – to play the lead role in a television ad. As such, Picnic's use of a Verstappen lookalike was not a coincidence, but was done to establish a link with Jumbo's ad.
Verstappen initiated court proceedings, in which he claimed that Picnic had unlawfully used his likeness by employing a lookalike in its ad. Verstappen invoked Article 21 of the Copyright Act, which provides that if a portrait is not commissioned by or on behalf of the portrayed person, the portrayed person may object to the disclosure only if and when they have a reasonable interest in objecting. Verstappen claimed that:
In addition, he claimed €450,000 in compensation for the damage that he had suffered as a result of this use of his likeness.
Picnic's main defences against the claim were that:
In an interim decision of 6 September 2017, the Amsterdam District Court held that the use of a lookalike constituted the use of Verstappen's likeness.(1) The court considered that according to settled Supreme Court case law,(2) the use of a person's likeness includes more than just the use of their face. Even the use of a person's characteristic posture without the simultaneous use of their face can be considered the use of their likeness. 'Likeness' therefore cannot be defined as a person itself, but rather an image that establishes a link with a certain person, regardless of the technique used to establish that link. Since the lookalike in the present case possessed all of Verstappen's characteristics, the use of the lookalike constituted the use of his likeness.
The next question before the court concerned Picnic's parody defence. Article 21 of the Copyright Act does not provide for a person's exclusive right to use their likeness. Rather, this depends on the circumstances of each individual case – specifically, whether the legitimate interests of the portrayed person outweigh the fundamental rights of third parties to express themselves humorously. These legitimate interests of the portrayed person often relate to privacy. However, for famous persons, legitimate interests can also include the commercial interest to control and profit from the exploitation of their image, including the right to prohibit a third party from associating itself with or profiting from the portrayal of the famous person.(3)
The court found that Verstappen's commercial rights outweighed Picnic's freedom of expression. Verstappen's significant popularity was deemed to be of great importance in this regard, as was the fact that Picnic had not proposed a commercial deal to Verstappen. Although the fact that the ad had appeared on Picnic's website for just one day had to be considered, the court also attached great value to the fact that Picnic's disclosure of the ad had had a commercial purpose. Picnic's main goal was to create brand awareness, and it had succeeded in this regard. Although the ad was taken down after one day, third parties had continued to share it online and report on the commotion that it had created.
The final issue before the court was the calculation of damages. According to Verstappen, his claim of €450,000 was equal to the amount that he could have asked for in a commercial deal if Picnic had requested his consent in advance. This number was substantiated by two expert reports and invoices relating to prior commercial activities performed by Verstappen. These invoices showed that he had a high commercial value, as he had been paid €100,000 for a three-hour appearance as a mystery guest at a festive opening of a store in the Netherlands.
Picnic argued that Verstappen had made only €300,000 per year for his appearance in Jumbo's television ad, and that this amount was for a large number of disclosures on national television. As such, that situation differed to the underlying matter in the present case, as Picnic's video ad had been online for only one day. In addition, Picnic stated that the amount payable to Verstappen should be lower than the amount usually paid to him for commercial appearances, as in this case the lookalike had done all of the work. Verstappen was not required to put in any effort in order to achieve the desired result.
In its 25 April 2018 judgment, the court emphasised that the case's outcome should reflect as much as possible the situation that would have occurred had Picnic requested Verstappen's consent in advance.(4) Since the court assessed that the actual damage could not be determined precisely, it estimated the damage in accordance with Article 6:97 of the Civil Code and awarded Verstappen €150,000. According to the court, this amount reflected Verstappen's popularity and commercial value.
Based on the case law concerning similar matters in the Netherlands, the amount awarded to Verstappen was extremely high. However, at present, it is unlikely that any one person enjoys more popularity in the Netherlands than Verstappen. This case clarifies that a person's right to control the use of their image cannot be violated easily. Although the parody defence is useful, the chance of success is limited if the parody is made in order to achieve commercial gain. As regards the bigger picture, Picnic may not consider itself the losing party in this matter. After all, it did succeed in its intention to create brand awareness for only €150,000.
For further information on this topic please contact Roderick Chalmers Hoynck van Papendrecht at AKD by telephone (+31 88 253 5000) or email (email@example.com). The AKD website can be accessed at www.akd.nl.
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