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Protection from look-alikes

YES to Katja Schuurman, NO to Sylvia Millecam

On how to obtain protection from look-alikes

For quite some time now, Dutch celebrities have been able to take action against the unauthorised exploitation of their portraits, by refering to what is called their ‘exploitable popularity’. In this context, the concept of ‘portrait’ should be interpreted in the broadest sense of the word, as will become clear in this article.

The populair young actress Katja Schuurman must have blinked a few times incredulously, before she realized it was not herself she was seeing in the advertisement by Ilocal (a search engine on the internet), but her double. Schuurman took the matter to court due to infringement of her portrait rights, and won. The outcome of these proceedings could have been different, though, as was the case years ago, when Sylvia Millecam instituted legal proceedings on similar grounds. On the basis of these two legal cases, I will try to throw light on the position of Dutch celebrities in relation to their look-alikes.

In 1994 the charming and versatile artist Sylvia Millecam (1956-2001), took computer company Escom to court. Escom was using a Millecam look-alike in an advertisement. Refering to her portrait rights, Millecam rised an objection against the use of her double. She argued it would harm her image if the public thought she was lending her cooperation to such an ad. Unfortunately for her – and to the astonishment of many lawyers – the court’s decision was not in her favour, based on the simple fact that the woman apearing in the advertisement wasn’t her. The ad showed a picture of model Claudia, not of Millecam.Although this was obviously true, the decision was hard to take, since it was most likely that Escom deliberately made use of Millecams fame, albeit indirectly. Surely I’m not the only one who thinks this should not be allowed.

In fact, some 11 years later, in the proceedings of Katja Schuurman against Ilocal, the judge thought so too. Ilocal avertised in several media, parodying the ads of the Gouden Gids, which actually do feature Schuurman. The parodies featured a Schuurman look-alike.
During the legal proceedings, Ilocal tried to control the damage by arguing that the parody should be seen as a joke. Weather the judge found the joke funny or not, his sense of humor did not stop him from concluding that Katja Schuurmans portrait rights were being violated. Ilocal was admonished to discontinue the advertisements and to publish a rectification in De telegraaf (a national newspaper), amongst other. In case of non-compliance, a penalty of 100.000 euro’s will be imposed for every advertisement.

If the judge had not honoured Schuurmans appeal against infringement of her portrait rights, she would have had her trademark to fall back on. Schuurman was clever enough to register her portrait as her trademark. In other words: her appearance is the logo of the Katja Schuurman enterprise. If Millecam at the time had registered her appearance as a trademark, the court would probably have decided in her favour too.

Steven de Roo

LL M Steven de Roo wrote his Masters thesis on ‘Topclass sportsmen and –women as a brand’ at De Merkplaats. He writes about Dutch celebrities and their rights in every edition of Winners & Co.