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Use of lookalike Max Verstappen violates portrait right

The Amsterdam District Court has ruled in favor of Max Verstappen in the proceedings against Picnic initiated by Max and his management.
According to the court Picnic violated Max’s portrait right by using a lookalike of Max in a playful parody of one of Jumbo’s television commercials.
 
Earlier the Amsterdam District Court and the Court of Appeal in Amsterdam rejected Max’s application for attachment. The Court of Appeal highly questioned whether Max’s portrait was used. Picnic’s video was a clear parody and the public understood it wasn’t the real Max that featured in the video. No real Max, no portrait (right) – according to the appeals court. This seemed to open the door to the use of lookalikes in advertising without consent of “the original”. This reasoning of the appeals court was remarkable and – to my opinion – incorrect. A portrait is by definition not a person, but a device that paints the picture of that person.
 
The Amsterdam District Court slams the door shut to playful use of lookalikes in advertising. In its decision the court rules that this is a portrait of Max, that Max has a (commercial) reasonable interest to oppose publication and that Max’s reasonable interest outweighs Picnic’s freedom of expression. Picnic’s freedom of expression (as in: “it’s just a joke”) carries little weight because the video is an advertisement with the goal to increase the public’s brand awareness of Picnic.
 
And so Picnic’s delivery cart ends up in the gravel. The court rules that Max’s portrait right is violated and gives Max the opportunity to substantiate his damages. There is a degree of skepticism in the considerations of the court regarding the claimed damages of EUR 350.000. The following needs to be taken into account when substantiating damages : the way the video was published (only on Facebook), the limited time of publication (1 day) and the fact that no effort was required from Max in producing Picnic’s video.
 
We will see how dearly Picnic will have to pay for this parody. To be continued.

Daniël Haije – advertising and IP lawyer

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