From Het Parool of Saturday May 21 2015:

The coffee cups concurrent of Nespresso – the prize fighter Espresso Club – made a commercial with a George Clooney lookalike. The similarity is very impressive. Check the clone of Clooney David Siegel. You see the same head, the same suit, the same product, the same look and the same feeling.

The Espresso Club thinks they are innocent. During the commercial there appears text saying: ‘The actor is not George Clooney’, so there can’t be confusion. Moreover Espresso Club focusses on ‘a different clientèle, one looking to save money and not impressed by the ‘high status ‘image of Nespresso’.

Nespresso went in Israël to a judge and asked for a prohibition, inter alia for infringement of copyright. The judge dismissed; Clooney plays himself in the espresso commercial and real people are not copyright protected characters.

Nespresso neglected, as I understand, to involve Clooney himself in the case. He had could have claimed infringement of portret rights. For example a comparable case in the Netherlands. Katja Schuurman did a campaign for the Gouden Gids. In the campaign Katja wears a yellow suit. A concurrent photographed a lookalike from the back, with a comparable suit, same haircut, same hair color, silhouette, posture, attitude and high heels.

The concurrent found that by doing that it didn’t infringe the portret rights because Schuurmans face wasn’t visible. It sounds logical, but juridically seen it is incorrect. The portret right protects more than just the face. The high counsil: even without matching faces, but with ‘other identifying factors’ there can be spoken of portrait rights.

The concurrent lost the case of the portret right of Schuurman. What didn’t help was that the campaign was called ‘Katja campaign’. With this name it was hard to deny that it actually was the plan to copy Schuurman. It would have been better to say: ‘This model isn’t Katja Schuurman’. Absolutely correct though attention attracting. Like thinking about a pink elephant: you may think about what you may not think.

© Sander Dikhoff 2015

Media-lawyer
s.dikhoff@parool.nl