Johan Cruijff versus portrait law: 0 – 1

In 2003 publisher Tirion published the photo book ‘Johan Cruijff – De Ajacied’ which contained a collection of photos of the legendary number 14. Prior to publication, the publisher had negotiated with Cruijff about financial compensation, but the parties could not reach agreement. Tirion published the book anyway and El Salvador took them to court. According to Cruijff, he could object to the publication on the basis of his portrait right. He carried on up to our highest court. The result is a ruling, given on 14 June 2013, in which the Supreme Court gives a comprehensive explanation of portrait law.
The Supreme Court ruled that for publication of a portrait the consent of the portrayed person is not always required, as Cruijff had asserted. The person portrayed can object to his portrait being made public without his consent if he has a reasonable interest therein which outweighs freedom of expression under the circumstances. Such a reasonable interest could be a privacy interest or in the case of celebrities, a commercial interest. The latter interest in particular was relevant in these proceedings. The appeal to his commercial interest on publication of this portrait was of no avail to Cruijff. According to the Supreme Court, the weight of such an interest depends on the circumstances of the case. An important circumstance is if the celebrity refuses a “reasonable fee” offered. This reasonable fee must correspond to the market value of the celebrity, according to the Supreme Court. After all, A-listers earn more than C-listers. Tirion had offered Cruijff a payment and Cruijff had inadequately explained why the offer was not reasonable. Appeal in cassation dismissed.
Remarkable: the Supreme Court seems to take quite a stand for the privacy interest of unknown persons in the ruling. Joe Bloggs does not necessarily have to tolerate publication of his portrait “in principle”. Here the Supreme Court seems to derogate from standard case law (1, 2) where the mere wish of the person portrayed to prevent publication was considered insufficient to form a reasonable interest. This decision will logically unleash a flood of comments.
Daniël Haije

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