WIN WIN
In 2017, Meubelhallen Kolham convinced one of their sales employees to participate in a photo session for an advertising brochure. A win-win situation; Kolham didn’t have to hire a model for the photo shoot and the employee got to show off the brochure to family and friends.
€ 7,000 COMPENSATION
However, in 2018 the amateur model went to work for a competitor and that’s when the hassle started because she was still featured in that folder! The ex-employee demanded that Kolham immediately stop distributing the brochure and by the way, she wanted to be paid € 7,000 compensation.
PORTRAIT RIGHTS
The case ended up at the district court in Groningen. The former employee invoked her portrait right and stated that she had a reasonable interest in opposing the use of the photo as she now worked for the competitor.
REASONABLE INTEREST
At the end of 2020 the judge came to a decision. The woman in question did indeed consent to appearing in the brochure, but it should have been up to Kolham’s responsibility to check if they could continue distributing the brochure once she had left the company. That didn’t happen and therefore, according to the judge, the former employee had a reasonable interest in opposing the publication of her portrait.
VERY HIGH END
However, according to the judge, 7 grand is ‘very much on the high end of the scale’ under these circumstances. After all, this was a one time usage without permission in a brochure where the employee was not the main feature: there were also photos of other people. Moreover, upon the request of the former employee, Kolham took immediate measures to prevent further distribution of the brochure.
NOT FAMOUS: € 500, –
According to the judge another important factor in determining the damage is the fact that the lady is not a famous or well-known individual and will not be directly linked to Kolham or the competitor. That’s why I think € 500 is more than enough in this case, which is what the judge granted in his decision at the end of December.
TIPS
The case provides two practical tips.
- Featuring employees in advertisements (offline and online) is fun and cheap, but do check whether the employee still finds it agreeable after they leave.
- Anyone who might feature as an employee in their company brochure shouldn’t be under the illusion that they are Kate Moss or David Beckham. Those celebrities can claim substantial compensation in case of infringement of their portrait rights. The average man or woman on the street has to make do with a meagre pay out.
* none of the ladies in the brochures above are the woman discussed in this matter.
