What would happen if the Verstappen case had taken place in Mexico?
J. Rafael Amador Espinosa
Max Verstappen, a Dutch Formula 1 driver of the Red Bull Racing Team, who will team up with Checo Pérez for the 2021 F1 season, filled a lawsuit against Picnic, an online supermarket in the Netherlands, for the unauthorized use of his image, specifically for a “look alike”.
The Case
Picnic, a start-up at the time, uploaded a video ad to their website / social media that showed one of their employees (ginger, thin and with a peculiar pose) wearing a Red Bull Racing Team uniform driving a Picnic truck trying to indicate that the online store’s delivery service was fast.
It should be noted that this idea was already used by a previous competitor, “Jumbo”, who had entered into a contract with the real Verstappen to include him in their television advertising campaign. In this case, the use of Verstappen’s look-alike by Picnic was no coincidence and was made public the day after Jumbo began his television campaign.
Verstappen filled a civil action before a District Court in Amsterdam, the Netherlands, in terms of article 21 of its Copyright Act, which states that if a person has not authorized the use of his image, an objection to its circulation could be made based on a reasonable interest.
In this sense, the arguments of the claim were that Picnic had taken advantage of Verstappen popularity without his consent and that he had a reasonable interest in stopping the exploitation of his image. Additionally, a claim of €450,000.00 was requested as compensation for the damages suffered.
Picnic’s defence was that a look-alike does not constitute a use of image and that its use should be considered a travesty and be allowed.
District Court Decision
A first decision of the District Court in 2017 was made in favour of Verstappen pointing out that the actions was actually a use of image based on two precedents of the Supreme Court of that country. In the first, it was decided that the use of the image of a person goes beyond of only his face. In the second, it was decided that in case of well-known people, they can limit to third parties the association and use of their image with certain trademarks and determine how to benefit from their fame.
In conclusion, the court determined that by balancing Verstappen’s commercial rights, they exceed Picnic’s right to freedom of expression.
In the 2018 decision by the District Court, decided to award €150,000.00 to Verstappen based on the commercial value of Verstappen’s image and its popularity, emphasizing that the outcome of the case should reflect as much as possible the situation of what should have happened if Picnic had previously requested Verstappen’s consent for the use of its (look alike) image.
Court of Appeals Decision
Dissatisfied with the payment of the €150,000.00, Picnic appeal the decision of the District Court. The Court of Appeals considered differently the arguments made by the parties and dismissed the District Courts decision stating that the protection of a person’s image cannot go beyond his or her portrait, as long as there is no reasonable doubt that it is not the same person.
The Court of Appeals considered in its 2020 decision that there was no violation of Verstappen’s portrait rights. Such violation could only exist if evoking Verstappen’s image would have damaged its reputation or Jumbo’s business interests. This, in the opinion of the Court of Appeal, did not happen and the Picnic announcement was not defamatory.
Supreme Court
At the time of the preparation of this article we did not have notice if the case has been referred to the Supreme Court, but according to the sources consulted, the relevant decision in the case is to determine whether the “lookalike” qualifies as a portrait under the terms of the Dutch Copyright Act, as well as to determine the exception of the parodies for commercial uses.
What would have happened in Mexico?
In Mexico, the Federal Copyright Law considers as a commercial infringement the use of a person’s image for commercial purposes without his authorization, as long as it is not a minor part of a group of people or is taken in a public place and for information purposes. These procedures are handled before IMPI.
The concept of the image rights that is read in the Federal Copyright Law as “portrait” has been interpreted in the past more broadly by our courts, determining that is not only limited to portraits or images because they are covered by the scope of protection of the privacy and private life and by the personal right that every individual has to present itself in front of the others.
Likewise, the Law of Civil Liability and Protection of Private Life, Honour, and Self-Image Rights in Mexico City, establishes that the image is “the identifiable reproduction of the physical features of a person on any material support” and that “every person has a right over his image, which translates into the faculty to authorize his appearance, or not and to authorize the capture or diffusion of the same”.
Subsequently, the content and outcome of the infringement procedure may be used in the exercise of the action for liquidated damages in a civil proceeding, which in no case may be less than forty percent of the retail price of the original product or the original provision of any type of service.
Although it is true that we do not have a record of the use of similarity (look alike) in the image of a person, it should undoubtedly be analysed on a case-by-case basis. In the case of Picnic advertising, there is no doubt that the physical characteristics, silhouette representation and postures of the character that appears in the commercial is the Formula 1 driver Max Verstappen, so it could be considered an infringement, especially when it is a commercial advertising, that is, it advertises a commercial establishment and is not intended to express any opinion of relevance to society.
In conclusion, the resolution that would have been adopted in Mexico would be much closer to the decision adopted by the District Judge in Amsterdam in 2017 and 2018, than the one adopted by the Court of Appeal. We will be looking forward with great interest the Supreme Court decision, if the Supreme Court studies the case.
