Max Verstappen is right after all. A lookalike of the F1 driver in a Picnic commercial is an infringement of his portrait right. The Supreme Court has decided that today. Max Verstappen’s claim for compensation must therefore be dealt with again.
Max Verstappen had lodged an appeal in cassation after an earlier decision by the Amsterdam Court of Appeal about a video from online supermarket Picnic, in which the racing driver is acted out by a lookalike. The court previously ruled that the lookalike in the video does not provide a portrait within the meaning of the Copyright Act. According to the Supreme Court, that is therefore incorrect.
Picnic posted a video on Facebook in 2016 in which a lookalike of Max Verstappen performs. In that video, the lookalike delivers groceries in a Picnic van, wearing a racing outfit, with a cap, which strongly resembles what Max Verstappen wears during media appearances and on the track. The video appeared a day after supermarket chain Jumbo launched a television advertisement in which the real Max Verstappen delivers groceries in a Formula 1 car.
Max Verstappen objected to the Picnic video. He demanded compensation from Picnic on the basis of the so-called portrait right.
Picnic had actually executed his playful inhaker too well, because the Amsterdam court ruled that the lookalike provides a portrait of Max Verstappen and awarded Verstappen’s claims. However, on appeal, the Amsterdam Court of Appeal dismissed the claims. According to the court, there was no portrait because it is clear to the public that it is a lookalike and not the real Max Verstappen.
Verstappen then appealed to the Supreme Court in cassation. The driver and his team argued, among other things, that a lookalike can also provide a portrait of the person depicted. The Supreme Court now rules that an image of a lookalike can indeed be a portrait of the depicted person under certain circumstances. This is the case if the person depicted is recognized in the lookalike and this recognition is increased by additional circumstances, for example through the use of clothing. Whether the public understands that it is about a lookalike and not about the person portrayed is not important. With the latter, the Council therefore deviates from the Court of Appeal.
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