The Kamergotchi and portrait rights

Since Monday I am taking care of Tunahan Kuzu, the party leader of the Dutch political party “Denk”. That is: I take care of him digitally, via the (Tamagotchi-inspired) Kamergotchi app, which was created by the Dutch satirical TV show “Zondag met Lubach”. I proudly inform you that Kuzu is doing rather well. I regularly give him food, love and fresh ideas. This keeps him alive and even puts a smile on his face. That’s good news. But what about Kuzu’s portrait rights? Is VPRO (one of the Dutch public broadcasting organisations) allowed to use Kuzu’s portrait (and that of other political leaders) in the Kamergotchi app?

An interesting question. Under Dutch law, Kuzu (like other people) can oppose the use of his portrait, to the extent that he has a reasonable privacy interest or commercial interest. A commercial interest exists if the portrayed person (Kuzu) normally charges money for the use of his portrait because of his popularity.

In this case it seems very unlikely that Kuzu has a reasonable privacy interest. Willingly and knowingly, Kuzu is a public figure. Moreover, even if Kuzu would have a privacy interest, this interest is unlikely to outweigh Lubach’s and VPRO’s freedom of expression.

Just like other politicians, Kuzu also does not seem to have a commercial interest. Politicians (as well as the members of the royal family) are not expected to capitalize their portraits. There may be an exception for politicians who are also known for other reasons than politics (such as Donald Trump). This does not seem to apply to Kuzu, however.

Finally, a sidestep: what if the Kamergotchi app would not have been published by a public broadcasting organisation, but by a company that would also advertise for its products via the app? For example: the app would be run by a hamburger chain, and politicians could be fed hamburgers. Also in that case, Kuzu would need to have a privacy interest or a commercial interest in order to successfully oppose the use of his portrait. However: there are Dutch judges who hold that a portrait can only be used in a commercial context with the permission of the portrayed person. This view lacks legal basis, but such judgments do exist. 

Conclusion: in my opinion, Lubach and the VPRO do not infringe the politicians’ portrait rights. But: a small degree of risk would exist for companies, if they would use the portrait of a politician in a commercial context.

Bram Duivenvoorde