Ruling in Picnic-Verstappen case increases room for manoeuvre for advertisers

The use of a celebrity's lookalike in advertising is allowed if it is clear to the public that it concerns a lookalike, the public will not think that the real celebrity supports the advertiser's products, and no actual damage will occur. This was decided by the Amsterdam Court of Appeal on 2 June 2020 in the case between Max Verstappen and Picnic. As a reminder, this case concerns - in the words of the Court of Appeal - "a short film in which both the appearance and clothing of the (main) person acting in it and the scenario refer to the performance of Verstappen in advertising films for supermarket chain Jumbo".

First of all, the Court of Appeal considered that the lookalike of Max is not a portrait of Max within the meaning of the law, so that there can be no question of a portrait right infringement. I find this judgment remarkable. According to the history of the law, a portrait is a recognisable image of a person, regardless of how that image was made. An image of a person is not the person himself. A lookalike should be seen as a tool to depict a person. The fact that the public understands that the lookalike is not the same as "the original" does not seem relevant to me.

It does not seem to make any difference to the outcome of the case. The Court of Appeal then considered whether the publication of the film was otherwise unlawful, and ruled that it was not. The substantiation provided by the Court of Appeal for this seems suspiciously similar to a portrait right assessment and would also have led to the rejection of a portrait right infringement. Max does not suffer any damage to his reputation, the public will not believe that Max supports Picnic (because Picnic keeps sufficient distance from the real Max) and Max's business interests in publishing his portrait will not be affected, let alone in such a way that the freedom of expression would have to give way - according to the Court of Appeal.

These considerations are relevant to the world of advertising. Apparently, the Court sees room for "use" of a well-known person in advertising if there is a (obvious) persiflage. This seems to limit the possibilities of well-known persons to act against reference to their person in advertising.

In a nutshell, it must be possible to make a harmless and non-confusing joke.

Daniel Haije