The Amsterdam District Court found in favour of Max Verstappen in the action on the merits against Picnic. Picnic had used a lookalike for Max in a humorous prod at a TV commercial for Jumbo. Picnic thus breached Max's portrait right, according to the court. Verstappen's earlier application for an attachment order had been
dismissed. The judge was doubtful at that
point whether Max had indeed been
portrayed. Picnic's jibe was a clear parody and
the public could easily see that the real Max
did not figure in its video clip. Not the real
Max, so no portrait (or portrait right), according to the judge. This appeared to open the door to the use of lookalikes in advertising, without permission from "the original". The judge's reasoning was curious and wrong. By definition, a portrait is not a person himself, but a means for evoking the image of that person. But the court has now resolutely closed the door on the frivolous use of lookalikes in advertisements: there was a portrait of Max, who has a (commercial) interest in objecting to publication, and Picnic's freedom of expression must take second place to Max's reasonable interest. Picnic's freedom of expression (as in "you should always be able to make a joke") did not carry sufficient weight, according to the court, because the clip was an advertising expression aimed at increasing Picnic's brand recognition.

So Picnic's delivery cart has been consigned to the rubbish dump for the time being. The court held that Max's portrait right had been breached, and he was allowed to substantiate his losses. The Court was admittedly somewhat skeptical about the damages claimed – EUR 350,000; for the substantiation of the loss, the court must take account of the way in which the clip was published (only on Facebook), the limited duration of that publication (1 day) and the fact that Max was not required to do anything at all for Picnic's clip to be filmed. We'll wait and see whether this turns out to be an expensive prank for Picnic. To be continued...

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