Perpetual image rights for the good: the proposed Dutch Cruyff provision

Johan Cruyff

As UK-based readers will know, in the Copyright, Designs and Patents Act 1988 there is a peculiar provision [s301] that provides the trustees of London pediatric Great Ormond Street Hospital with a (perpetual) right to a royalty in respect of the public performance, commercial publication or communication to the public of Sir James Matthew Barrie's Peter Pan, as well as any adaptation thereof, notwithstanding that - technically speaking - copyright in that work expired a while ago (31 December 1987).

Now something similar to the Peter Pan provision under UK law is being advanced in The Netherlands, though the proposal has to do with image rights (or portrait right) rather than copyright.

Katfriend Dirk Visser (Leiden) has proposed [here and here] that the Dutch Copyright Act is amended to honour the work - especially charity work - of Dutch footballer Johan Cruyff. In 2013 the Dutch Supreme Court ruled that Cruyff was entitled to a reasonable fee for commercial use of his portrait, partially replacing, but not excluding, the power to invoke a prohibition of its use.

The amendment that Prof Visser is proposing reads as follows: 

"For every publication or disclosure of the portrait or the name of Johan Cruyff for commercial reasons and profit, a reasonable fee is payable to the Johan Cruyff Foundation in Amsterdam." [if you support this proposal, please make this known to Prof Visser by emailing him at d.j.g.visser@law.leidenuniv.nl]

This Kat has learned that image rights are part of Dutch copyright law pursuant to section 21 of the Copyright Act:

Reminds you of anyone?

"If a portrait is made without the author having been commissioned by or on behalf of the person portrayed, or for his benefit, the rightholder is not permitted to disclose the portrait to the public if there is a reasonable interest opposing disclosure on the part of the person portrayed or, after his death, one of his relatives."

Post-mortem image?

A question that might arise is whether it is possible to have post-mortem image rights [Cruyff died a few days ago].

While in The Netherlands the answer appears to be in the affirmative due to the very wording ("after his death") of section 21, in some countries image rights are rooted within the right to one's own privacy (this has been the case of the publicity right in the US states that recognise it, but also the French image rights): could this mean that one's own image rights terminate upon death in those countries?

This appears to have been the position of French courts for a while. For instance, in 1983 the Paris Court of Appeal ruled that the heir of Claude François [here but also here, to remember the times when it was fairly popular to have different language versions of the same song] could not have inherited the popular singer's image rights, as these terminate with the person's death. 

This principle was reaffirmed a few years later in a case regarding photographs of former French President François Mitterand on his death bed. The Paris Court of Appeal stated that "[t]he right of privacy only belongs to living persons and can not be passed onto heirs", although it held that unauthorised photographs of a person's remains amounts to an invasion of the family's private life, as well as to an impairment of the peaceful rest of the deceased.

Rihanna succeeded against Topshop,
but not because she
enjoys actual image rights

Things however changed in the late 1980s and throughout the 1990s. In 1996 the Paris Court of Appeal held that "[t]he right of image is a personality right which entitles anyone to oppose the dissemination and use of his or her image without prior consent". Subsequent case law has confirmed that French image rights can be indeed enforced by one's heirs too.

Italian law [Article 10 of the Codice Civile] contains a specific provision on image rights and allows one to oppose the unauthorised use of one's own image, as well as the image of his/her parents, spouse, or children. 

Italian courts have been fairly generous when interpreting Article 10, and even held that mere evocation of one's own image [Audrey Hepburn], ie without even using a person's actual image, could amount to an infringement of Italian image rights law, especially in the context of advertisement, ie commercial exploitation of that evoked image.

In some places image rights do not even exist

All in all the proposed Cruyff provision does not appear to disrupt the law on image rights, whether in The Netherlands (section 21 already allows explicitly a post-mortem portrait right) or by drawing a comparison with other jurisdictions.

Image rights may be a fairly powerful and extensive kind of protection, especially if not subject to any expiration date. However, they are not recognised everywhere. 

Besides the example of the US (where personality rights are a matter of state law, rather than federal law) in the UK, for instance, there is no such thing as image rights. 

Both the High Court and the Court of Appeal of England and Wales confirmed this in the recent Fenty v Arcadia litigation [the Rihanna case]: "[t]here is in English law no "image right" or "character right" which allows a celebrity to control the use of his or her name or image" [here]. 

Lacking specific image right protection, UK courts have relied on the common law torts of passing off or - in what continental lawyers would call privacy cases - breach of confidence. As such Merpel something like the proposed Cruyff provision would likely be something unthinkable in this country, even for celebrated local footballers who are also known for their charity work.