[Guest post] Flattery or freeloading? The use of look-a-likes within the context of image rights

The IPKat is pleased to host another guest contribution by Jan Jacobi (Kindred Group) on an interesting Dutch case relating to image rights as applied to the evocation of someone's own image.

Here's what Jan writes:

Flattery or freeloading? The use of look-a-likes within the context of image rights

by Jan Jacobi

Copycats trying to find a fair balance

“Imitation is the sincerest form of flattery that mediocrity can pay to greatness”, Oscar Wilde famously stated. Yet, the comical imitation of another work or person is not without controversy. Whilst some grin and bear the parody, others are less charmed by a spoof of their creation or persona.

Max Verstappen, renowned F1 driver, proved to be the latter. In a case currently pending before the Dutch Supreme Court, Verstappen alleged that the use of a look-a-like in a commercial infringed his portrait/image rights. The recently issued conclusion (of 8 October 2021) by the Attorney General to the Dutch Supreme Court is worth discussing, as it gives an insightful analysis of a difficult topic: what are the limits to parody?

Background

In 2016, Verstappen featured in a TV commercial for Dutch supermarket chain Jumbo. In the commercial Verstappen delivers groceries in his F1 racing car, attesting to the swiftness of Jumbo’s delivery service. Shortly thereafter, Picnic, a competitor of Jumbo, also launched a commercial. In this commercial, a (very accurate) look-a-like of Verstappen, wearing the identical racing outfit Verstappen wore in the Jumbo commercial, delivers groceries in Picnic branded lorry.

Unhappy with the parody, Verstappen successfully claimed infringement of his image right at first instance (before the district Court of Amsterdam). The Court of Appeal of Amsterdam ruled differently and held that, under Dutch law, image rights only grant protection against the actual use of one’s own image. Given that the commercial of Picnic merely depicted a look-a-like of Verstappen, the image of Verstappen itself was not used and thus could not have been infringed.

In an attempt to have the final laugh, Verstappen brought the case before the Dutch Supreme Court.

The advice of the Attorney-General

In its (non-binding) advice to the Dutch Supreme Court, Attorney General Hartlief (A-G) firstly considers what is to be understood as an ‘image’ under Dutch image right law. Since the law provides no definition, the A-G looks for guidance at the legislative history (dating from 1912) that describes an image as “the depiction of a person’s face”. Based on this, the use of a look-a-like would not qualify as an image, given that a person’s face is merely imitated, but not depicted as such.

Finding the legislative history to be outdated, the A-G approaches the concept of an image from a different angle. According to the A-G, the decisive element of an image should not be the actual depiction of a face, but rather the overall recognisability of the depicted person. If a certain person can be sufficiently recognized even though that person itself is not being depicted, such depiction can constitute an image.

Applied to look-a-likes, the A-G holds that looking similar to someone does not automatically result in the use of their image. However, if specific effort is made to have a look-a-like closely approach the same appearance of someone, and as a result is recognizable to that someone, their image rights could be used. The fact the audience is aware that a look-a-like is being used and not an image of the imitated person itself, is not of relevance, so the A-G finds.

In relationship to the commercial of Picnic, the A-G concludes that there is an obvious attempt to have the look-a-like resemble Verstappen as much as possible, without there being question that the audience took the look-a-like for Verstappen.

Having established there being an image, the A-G raises the question of whether the parodical use of such image should be tolerated. The A-G pleads that, in absence of a national provision under Dutch image right law, a ‘parody exception’ should be adopted similar to the exception of harmonized EU copyright law (as provided for in article 7 of the DSM directive (Directive (EU) 2019/790).

Consequently, parodical use of one’s image should in principle be allowed, unless the parodied/imitated person has a legitimate interest to object thereto. Such interest may exist in case of defamation or when there is a risk of confusion, impairing the public’s ability to

distinguish between goods and services or wrongfully assuming the imitated person endorses such goods and services. The A-G considers a commercial motive behind the use of one’s image as a relevant, albeit it not deciding factor. Overall, the A-G concludes that the bar for having legitimate will be high and not often met.

Kat-a-like or look-a-Kat?

Comment

An observant Kat might recall that the direction of the A-G is reminiscent of a decision by the Court of First Instance of Milan of 2015. In this case, the court ruled that the use of ‘evocative elements’ of Audrey Hepburn’s image in an advertisement (by having a model dress in ‘classic’ Hepburn attire: a satin dress, pearl necklace, sunglasses) allowed the public to relate to Hepburn directly and unequivocally, which resulted in the image rights of Hepburn being used.

Despite this Italian precedent, it can be argued that the A-G extended the protection of image rights beyond its original scope and in doing so provided a (potentially dangerous) tool to restrict humouristic expressions. At the same time, especially in the era of ‘fake news’, an audience may have difficulties distinguishing between parody and sheer exploitation of one’s persona. In such cases, as the A-G finds, it may be justified to oppose potential confusion through image rights. It will be interesting to see what direction the Supreme Court will take in its final judgment (expected in 2022) and whether Verstappen will have the final laugh after all.