Last year the Amsterdam Court of Appeal ruled that Picnic was allowed to use a lookalike of Max Verstappen in a promotional video after all (see our article on this website). There would be no infringement on the portrait right of Max Verstappen, but rather a persiflage.
Max Verstappen subsequently lodged an appeal in cassation with the Supreme Court against the judgment of the Court of Appeal of Amsterdam. As part of the cassation procedure, Advocate General (A-G) Hartlief, advisor to the Supreme Court, recently commented on the dispute.
According to the A-G, the Court of Appeal of Amsterdam took a too sharp turn in interpreting the concept of ‘portrait’ in Section 21 of the Dutch Copyright Act. According to the A-G, even if the public does not think that the lookalike is actually Max Verstappen, there can still be a portrait. The A-G is of the opinion that the use of the lookalike should be considered a portrait of Max Verstappen.
The Court of Appeal of Amsterdam was of the opinion that there was no portrait. Therefore, the Court of Appeal did not make the weighing of interests required to determine whether Picnic was allowed to publish the video. According to the A-G, this weighing of interests still has to take place.
On the basis of the above, the A-G is of the opinion that the judgment of the Court of Appeal of Amsterdam cannot be upheld.
It now remains to be seen whether the Supreme Court in its judgment follows the advice of the A-G. Usually this is the case. In that case, another court of appeal will have to decide on the case again. So far, the judgment of the Supreme Court is expected on 11 March 2022.
See the full opinion of the A-G in Dutch here.
Want to know more?
Would you like to know more about portrait rights or comparative or misleading advertising? Or do you have other questions about copyright law, advertising law or trademark law? Then please contact Ernst-Jan Louwers or Eva van Groezen.