Recently, the Amsterdam court ruled that Picnic's online supermarket use of Max Verstappen's lookalike in one of her commercials infringes the Formula 1 driver's portrait.
The commercial was a fence on Jumbo 's commercial reclamebasket , in which the real Verstappen delivers Jumbo's shopping carts to customers. Picnic was inspired by this and soon put a video on her Facebook page entitled "If you are on time you do not have to race", where a lookalike of the driver puts groceries in a picnic delivery bus. Picnic's video has been viewed on the Facebook page over 100,000 times and viewed more than 200,000 times on YouTube. It has also been shown in various television shows. The management of Max Verstappen, Dutch most successful Formula 1 driver, claims that this commercial infringement infringes the driver's portrait rights.
Are lookalikes fall under portrait law?
The portrait right is the right of the trained person to oppose the disclosure of his or her (non-commissioned) portrait when the promoter has a reasonable interest here. This right includes more than just an image of the face, it may also be applicable when a person is recognized by, for example, the apparel or typical posture (as also emerged in a case about Katja Schuurman 's portrait law ). The portrait right also applies to the use of lookalikes, in the words of the court:
"A portrait is not by definition a person himself, but a tool that calls upon that person's image. Which technique, or what artificial grips that result is achieved, is of secondary importance. It is therefore whether the similarity is used to invoke the image of a person, or is it intended for the public to see the used image of someone (the portrait of) Max Verstappen. "
The court finds that the lookalike used by Picnic is to be noted as the use of the Verstappen portrait. It shows all the characteristic features of the particular portrait: the same cap, the same race outfit, the same hair color, the same silhouette and the same posture. In addition, Picnic recognized in the media that the her conscious intention was to recall Verstappen's image.
Commercial portrait right versus freedom of expression
Whether the commercial infringement has been violated depends on whether Verstappen has a reasonable interest in opposing its use. For this reason, the court weighs the commercial interest of the driver against the discretion of Picnic. Verstappen has, as a known person, a commercial interest in opposing the exploitation of his portrait and can ask for compensation when using his portrait due to his so-called silverable popularity . According to Picnic, it's a funny joke on the Jumbo commercial and this jumbo punch falls to Jumbo under the freedom of expression, which includes the humorous expression of humor.
The court is of the opinion that in this case the freedom of expression must be different from Verstappen's commercial interest. This is an advertising manifestation of a commercial nature, without prior compensation for Verstappen being offered before the publication of the portrait. The video also includes some content and content aimed at increasing Picnic's name recognition. The conclusion is that Picnic has infringed Verstappen's portrait law and has to compensate for the loss he has suffered. What will be the exact compensation will be determined at a later date.
In addition to protection based on portrait law, the registration of a portrait as a brand can be a good addition. Significant protection of a portrait is, in principle, possible and offers some advantages in addition to portrait law. For example, the trademark holder can propose a ban in case of infringement, something that can only be done by the portrayer under portraiture. Also, a trademark right in contrast to the portrait right is susceptible to transfer, licensing and inheritance.