Many commercials feature local or international celebrities, who usually have some contractual connection to the company whose products they are promoting. In such a case, the company is authorised to use the person’s image. But there are exceptions to the rule. Sometimes, instead of the real actor or athlete making an appearance, the message is communicated by someone impersonating, mimicking, parodying or simply looking like the celebrity. Is this allowed or does the person represented in this way have legal grounds to object?
Portrait rights and privacy
Portraits allow for direct or indirect identification of a person, which may constitute an infringement on the individual’s privacy. As such, portraits qualify as personal data and may even fall under the heading of special categories of personal data. Photographers, as a result, do have professional obligations under the GDPR.
Furthermore, portrait protection is included in Articles 19 through 21 of the Dutch Auteurswet (copyright law). Photographs showing faces evidently qualify as personal data, regardless of whether the picture is of a group of people or one single person. All photographs in which faces are visible qualify as personal data.
Pictures may also be considered portraits if a person, without his or her face being shown, can be recognised by posture, physique or other unique characteristics. The Dutch Supreme Court, for instance, ruled that in the case of a woman recognising herself in a picture published in a naturist campsite’s brochure, the photograph qualified as a portrait. In the Court’s view, the fact that in the picture, taken from a distance without her permission, the woman’s side-view posture made her recognisable to people who knew her, was sufficient cause for the picture to qualify as a portrait, in spite of her face not being visible. Even if a picture, in other words, does not, or not completely, show a person’s face, it can still be considered a portrait if the person is identifiable. In this respect, what is true for photographs is true for sketches and cartoons as well.
As specified in Article 21 of the Dutch copyright law, a person portrayed in a photograph not commissioned by that same person can object to its publication on the ground of reasonable interest. As which, privacy certainly may fit the bill. Likewise, a person portrayed in a picture may object to its inclusion in an advertisement or commercial based on the reasonable interest of not wishing to be seen or thought of as endorsing a particular product or service. If the existence of reasonable interest applies, the person may demand removal of the offending picture and may be entitled to compensation or rectification.
So, what about lookalikes? Principally, the image of a lookalike is not a portrait of the actual person, so how can privacy be an issue? Let’s see what the Dutch Supreme Court had to say about that in its recent ruling on a dispute between F1 driver Max Verstappen and the Picnic supermarket chain.
In one of its commercials, Picnic used a Max Verstappen lookalike acting as the current world champion in his distinctive racing outfit. The whole thing was clearly based on a commercial by competitor Jumbo, in which the real Verstappen is seen delivering groceries in his F1 racing car. Thereupon, Verstappen filed a case with the Amsterdam district Court, claiming damages in the amount of 350,000 Euros for infringement on his portrait rights ex. Article 21 of the Copyright Law. In its verdict, the Court ruled that the Picnic commercial did indeed constitute an infringement on the race driver’s portrait rights, awarding Verstappen a substantial amount in compensation. Picnic then took the case to the Amsterdam Court of Appeal which reversed the previous verdict, judging the Picnic commercial to be permissible, with no violation of Verstappen’s portrait rights having occurred.
Finally, on April 22 2022, the conclusive last word was spoken by the Dutch Supreme Court, which held that use of a lookalike may constitute an infringement on the ‘spoofed’ person’s portrait rights after all, basing its verdict on the consideration that the image of a lookalike may, in certain conditions, qualify as a depiction of the actual person and as such, does constitute a portrait right violation. According to the Supreme Court, this will apply if the person parodied is ‘recognised in the image of the lookalike and such recognition is reinforced by additional circumstances’ – such as specific attributes or signature clothing. In the Picnic video, the lookalike was wearing the exact same outfit as Verstappen himself in the Jumbo commercial, adding to the strength of association. In contrast to the Court of Appeal in its earlier verdict, the Supreme Court argued that it is irrelevant whether or not the viewers understand that they are looking at a stand-in for the actual person and not the actual person, in this case Max Verstappen, himself.
In short, the Picnic commercial featuring a Max Verstappen lookalike wearing the race driver’s iconic outfit qualifies as a portrait. Whether or not the real Verstappen has legal grounds to object depends on the applicability of reasonable interest. Here, in the wake of the Supreme Court’s ruling, his original claim will be presented to the Court of Justice of The Hague for final assessment. This means that whether or not Verstappen is entitled to compensation is yet to be decided, as is the amount of such reparation, if applicable.
Images and appearances of lookalikes may qualify as portraits, meaning that they cannot be used for commercial purposes as a matter of course. If the actual person is recognisable in his or her lookalike, a claim of portrait right violation may stand a fair chance of success in court, without the audience’s “lookalike awareness” or absence thereof being relevant. So, the apparent appeal of featuring celebrity lookalikes in commercials notwithstanding, this recent ruling by the Supreme Court may provide food for thought if not grounds to reconsider.