Under ‘portrait law’ the appearance of a person is protected and one should not simply use a recognizable image of someone else. If this does happen, then the person portrayed may oppose this, provided he has a reasonable interest in this. In the case of public figures such an interest may consist of their ‘bankable popularity’. I.e. they can bring an action against use of their image without their consent, and be granted compensation of the money they could have earned, if they had agreed to the use of their portrait.
The world-famous Formula 1 driver Max Verstappen Jr. has such bankable popularity which he uses inter alia by advertising the supermarket chain Jumbo. The online supermarket Picnic, a competitor of Jumbo, has found a lookalike of Verstappen, dressed him in the same outfit and used him for a commercial in which it advertises its services with a humoristic reference to Jumbo. The clip was online for one day, went viral and was removed by Picnic, when Verstappen asked so. Next Verstappen went to court and was found to be in the right: Picnic had (intentionally) called up the image of Verstappen with the lookalike, and by doing so violated Verstappen’s portrait right. According to the court, Verstappen’s bankable popularity outweighed the right of Picnic in the freedom of (humoristic) expression, and that is why Picnic had to pay EUR 150,000 damages to Verstappen.
Picnic successfully appealed this decision. In said appeal, the Appeal Court of Amsterdam (2 June 2020) found that Picnic did not violate the portrait rights of Verstappen, because it was clear that it was a persiflage. According to the Appeal Court, portrait law does not protect from imitating (characteristics of) someone and it is clear (e.g. in a persiflage) that it is not the person himself, but someone who looks like him. This also goes for intentionally creating the association with Verstappen. Seeing that Picnic therefore did not use the ‘portrait’ of Verstappen in a legal sense, it does not have to be examined whether Verstappen would have a reasonable interest in opposing the commercial.
The last resort of Verstappen, i.e. that the advertising is unlawful, because it harms his honor and reputation or his business interests, the Appeal Court also dismisses. The advertising does not involve libel or defamation, there is no confusion regarding the person in the advertising and it is not expected that the advertising will have any negative impact on Verstappen’s relationships with sponsors. What is more, shortly after the commercial Jumbo renewed its contract with Verstappen. And so, Verstappen continues to earn with his portrait, did not incur any specific damage and misses out on the damages previously granted. The decision shows that the court has a high degree of discretion in the assessment of reasonable interest and that merely taking advantage of someone’s recognition – without causing any confusion or damage – should be possible.