Our world famous Dutch F1 driver Max Verstappen has won a
court case he had filed against online supermarket Picnic.
Verstappen objected against a commercial in which a
Verstappen lookalike was used to deliver Picnic products to its
customers. The commercial refers to an earlier commercial that
featured Verstappen delivering products for supermarket Jumbo.
Verstappen's management's earlier claims for €350,000 were
rejected in two instances.
The Courts doubted if portrait rights could be invoked as
referred to in Section 21 of the Copyright Act, as Picnic did
not use Max Verstappen himself but a lookalike and therefore
did not use a real portrait of Verstappen.
In line with earlier jurisprudence, where the use of a
lookalike of Dutch actress Katja Schuurman was considered
unlawful, the Court however now ruled in Verstappen's favour. A
portrait is by definition not the actual person, but an aid to
portray the image of that person. The intention of Picnic was
clearly to use the image of Verstappen by using an actor with
the same cap, race outfit, hair color, silhouette and the same
posture as Verstappen.
Furthermore, the commercial was apparently deliberately
intended to parody the earlier commercial in which the real Max
Verstappen appeared, by using an obvious lookalike in a similar
scene and setting. According to the Courts it was doubtful if
Section 21 of the Copyright Act could be relied on in case of a
parody where the public is supposed to recognize the actor as a
lookalike and not as Max Verstappen himself.
The Court now agreed that Picnic should be allowed the
liberty to humorously express themselves in accordance with
article 10 ECHR. However, this is outweighed by Verstappen's
right to protect his private and family life in accordance with
article 8 ECHR and to oppose the commercial use of his portrait
and the exclusive license to use his image that Max has given
to certain companies. Also taken into account was the fact that
Picnic used the parody not merely as a joke but as a media
strategy for commercial gain. Verstappen should receive a
reasonable compensation for the commercial exploitation of his
popularity. It was thus ruled that Picnic had violated
Verstappen's personality rights by using a lookalike.
The amount in compensation Picnic will have to pay to
Verstappen is yet to be determined. Verstappen, relying on
Section 21 of the Copyright Act, therefore now has to motivate
what damages he has suffered, for instance by substantiating
what reasonable fee he could have demanded had he given consent
to Picnic to use his portrait. The manner of publication on the
internet, the timing and limited duration of the publication by
Picnic and the fact that the commercial by Picnic did not
require Verstappen's efforts will also have to be taken into
account. The fact that Max Verstappen has an exclusive contract
with Jumbo and is actually not free to collaborate with a
competitor of Jumbo need not be taken into account.
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