In the autumn of 2016 the pride of the Netherlands, Max Verstappen, appeared in a television ad for Jumbo. In response Picnic, a new online supermarket, broadcast a commercial via social media: a Verstappen lookalike delivering shopping in a Picnic delivery van.
Max's management claimed EUR 350,000 from Picnic for broadcasting the commercial, and sought attachment for this amount, but was unsuccessful. The preliminary relief judge rejected the application for attachment, and the Court of Appeal in Amsterdam upheld the decision on 2 May 2017. Those decisions show quite a negative view on the chance of success of the underlying claim to portrait rights. According to the Court of Appeal Picnic cannot invoke portrait rights because the commercial is blatantly intended as a parody. And even if portrait rights could be invoked, then the management did not sufficiently substantiate the claim.
The Court of Appeal highly doubts whether this is a portrait of Max, since it would not be Picnic’s intention to lead the viewers into thinking that the lookalike in the Picnic video is Max himself. That is a remarkable argument. A portrait, by definition, is not the actual person, but an aid which calls to mind the image of that person. The intention was clearly to portray Max by using the lookalike. Whether the public thinks that the aid is the actual person, strikes us as irrelevant. A photo of a person can be a portrait, even though the public knows that the paper on which the photo is printed is not the person himself.
From now on, will the use of lookalikes in parody adverts be allowed without the consent of ‘the original’? It seems unlikely. Another judge might just come to a different conclusion at a later stage. The ball is in Verstappen’s court, or should we say, he’s in the driving seat. Will he be brought up short by the ruling of the Court of Appeal, or will he put his foot down and carry on with proceedings? We’ll know soon enough.