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18 April 2016
On March 24 2016 Johan Cruijff, the most well-known Dutch soccer player, died. Aside from his legacy as a professional football player, Cruijff also had a significant impact on Dutch portrait law.
The main rules regarding portrait rights are laid down in Articles 19, 20, 21 and 35 of the Copyright Act. These articles stipulate when a portrayed person may object to the publication of his or her portrait. The definition of a 'portrait' includes all recognisable images of a person, including images of a person's posture or a caricature.
Article 20 of the Copyright Act determines that if a portrait is commissioned by or on behalf of the portrayed person, disclosure of the portrait is allowed only with the consent of the portrayed person. The portrayed person may object to the disclosure when their consent is lacking.
Article 21 of the Copyright Act determines 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 he or she – or if the portrayed person is dead, one of his or her relatives – has a 'reasonable interest' in objecting. According to case law, examples of a reasonable interest are a privacy infringement, ridicule and threats of reprisal and a commercial interest.
Cruijff addressed the question of when a commercial interest qualifies as a 'reasonable interest' for opposing the disclosure of one's image. In 1979 the Supreme Court recognised that a portrayed person may have a reasonable interest if his or her popularity as a result of his or her profession is such that commercial exploitation by means of the publication of his or her image is possible.(1)
In 2003 Cruijff objected to the publication of a book published by Tirion. The book – an informative publication about Cruijff playing for AFC Ajax – contained a series of pictures of Cruijff without his consent. Before publication, Tirion offered Cruijff compensation for the publication of his image, which Cruijff rejected. In legal proceedings, Cruijff argued that portrait right was a right of privacy which granted him the right to object to every publication of his image without his consent.
The District Court and later the Appellate Court ruled against Cruijff and did not prohibit the book's publication based on Cruijff's portrait rights. In 2013 the Supreme Court confirmed the Appellate Court decision. The Supreme Court made an extensive ruling, which had significant importance for Dutch portrait law.(2)
In its fundamental ruling, the Supreme Court clarified that Dutch portrait rights do not qualify as an absolute right to object to the disclosure of one's image. Portrait rights are based on the fundamental right of respect for someone's private life – incorporated in Article 8 of the European Convention on Human Rights – and must be balanced with the right of freedom of expression incorporated in Article 10 of the European Convention on Human Rights. In this respect, the Supreme Court referred to European Court of Human Rights jurisprudence – namely, Reklos(3) and Caroline von Hannover/Germany II.(4)
Because of the news value, in most cases public figures of whom pictures are made during their professional practice in the public arena may not oppose to the disclosure of such pictures. However, such public figures – having a commercial interest – are in some circumstances entitled to a reasonable fee for the commercial use of their portrait. The amount of the reasonable fee depends on the circumstances of the case, taking into account the popularity of the portrayed person and the commercial value of the portrait. If a reasonable fee is offered and privacy interests are not at stake, the disclosure of the portrait of the public figure is not unlawful (special circumstances notwithstanding).
A Dutch law professor has suggested the implementation of a new Article (14) into the Copyright Act, in which the rule of law resulting from Cruijff – that public figures having a commercial interest are entitled to a reasonable fee for the commercial use of their portrait in certain circumstances – be laid down.
This suggestion is accompanied by the idea that in amending the Copyright Act, Cruijff and his charity work should be honoured – in the same way in which the UK Copyright, Designs and Patents Act 1988 refers to the term of protection of some copyrights relating to the play Peter Pan by JM Barrie, which was extended perpetually so that the rights holders could continue to collect royalties on it. While amending the Copyright Act might be a step too far in honouring Cruijff's legacy, it will be interesting to see whether the initiators can convince the legislators.
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