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Netherlands: Portrait of a racer

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.

Denys Bertels

V.O.Carnegieplein 5, 2517 KJThe HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

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