Commercial Exploitation of Jogging Mother’s Photograph
The Dispute
In June 2007 Mrs De Rooij-Van den Boogaard was photographed
without her consent or knowledge. The photograph at issue, which
was taken diagonally from behind, depicts the woman in jogging
outfit jogging behind a pram and with an Mp3 player on her head.
The photograph was taken by stock photograph agency Hollandse
Hoogte, a company that offers licenses for payment for the use of
photographs, and was included in the online database under the
category 'editorial use'. Hollandse Hoogte then licensed
the photograph to, among others, the Consumers' Association,
which published the photograph full-page in the monthly
Consumentengids next to an informative article about the use of Mp3
players. De Rooij-Van den Boogaard considered this an infringement
of her portrait right.
In the preliminary relief proceedings that followed, De Rooij-Van
den Boogaard claimed that infringements of her portrait rights be
ceased and desisted. To this end, she argued that the photograph
had been taken without her knowledge and consent. De Rooij-Van den
Boogaard thought that she had a reasonable interest in opposing
this, namely the fundamental right to be left alone. In addition,
she was depicted in the photograph in an uncomfortable way for her,
namely jogging and in tight, non-concealing clothes. Moreover, she
argued that she herself wants to have the right to use her portrait
for commercial purposes. De Rooij-Van den Boogaard thinks that her
interest in privacy must prevail over the freedom of speech of
Hollandse Hoogte.
The Adjudication
According to the Court in preliminary relief proceedings, the
reliance on portrait right made by De Rooij-Van den Boogaard fails.
After all, it was an innocent photograph that was not placed in a
discrediting context. Furthermore, the woman is not a famous Dutch
person, a model or a sportswoman who can commercially exploit her
portrait. Under these circumstances the Court in preliminary relief
proceedings stated that the right to privacy was not violated to
such an extent that the right to publication of the photograph by
Hollandse Hoogte must give way. De Rooij-Van den Boogaard therefore
has no reasonable interest in opposing the publication. De
Rooij-Van den Boogaard appealed against this judgment.
The Court of Appeal held that De Rooij-Van den Boogaard has no
urgent interest any longer in the claimed prohibition, since
Hollandse Hoogte has announced that, out of understanding for the
personal arguments of the woman, it decided to exclude the
photograph from the database. Furthermore, the Court of Appeal held
that it is understandable as such that De Rooij-Van den Boogaard,
on account of her personal choices, has objections to the
publication of the relevant photograph. However, according to the
Court of Appeal this interest does not outweigh the interest in
provision of information that Hollandse Hoogte relied on, which
interest entails that a report, as is at issue here, must be
provided with illustration material such as photographs of reality.
According to the Court of Appeal it is unavoidable that photographs
of accidental passers-by are being published.
The Court of Appeal considers the photograph at issue to be a
neutral photograph. Furthermore, the photograph cannot be qualified
as compromising or discrediting in any way whatsoever, or as having
such an effect. The photograph and its publication in the
Consumentengids are also not meant to recommend a product or a
service. According to the Court of Appeal, the fact that the
license is paid for does not change this. The Court of Appeal held
that infringement of the right to respect for privacy was in any
case not so serious that the interest of the provision of
information must yield to it, and thus upheld the judgment of the
Court in preliminary relief
proceedings.
Conclusion
In the Disco dancer judgment (HR 2 May 1997, NJ
1997, 661), the Supreme Court held that the protection the
Copyright Act provides to a person portrayed, especially protection
against infringement of his right to respect for his individual
privacy, entails that in principle the portrayed person always has
a reasonable interest to oppose the use of his portrait in a
commercial advertisement. The Court of Appeal thinks that this
condition has not been fulfilled, because the portrait of De
Rooij-Van den Boogaard was not used in a commercial advertisement
for a specific Mp3 player, but only served as an illustration to a
general, informative article about Mp3 players. Thus, the judgment
appears to be a limitation of the Disco dancer judgment,
since it is not possible to oppose just any kind of commercial use.
Although Hollandse Hoogte does not use the photograph as an
illustration, it does sell it, which is definitely commercial use.
Since De Rooij-Van den Boogaard is not a famous Dutch woman, a
model or a sportswoman who has a cashable interest, a license was
only granted for 'editorial use' and the photograph is not
compromising or discrediting either, the Court of Appeal ruled that
the reliance of De Rooij-Van den Boogaard on portrait right fails,
and that the interest of the provision of information must prevail
in this case over the interests of De Rooij-Van den Boogaard.