Court of Amsterdam, 5 June 2012: Wasi Malik versus Monta Street GmbH et al. and simultaneously Han Lans Amsterdam B.V. versus Monta Street GmbH et al.

The Facts

Wasi is a well-known street soccer player who is frequently asked to model in advertising campaigns. He has also worked for campaigns of Monta, an internationally famous street soccer brand. Monta and Wasi have concluded several contracts under which Wasi was photographed for Monta's promotional purposes. In 2011 the cooperation between Monta and Wasi ended.

However, Monta has since continued using a logo in which a silhouette of Wasi is incorporated. This logo was traced from a photograph taken by the photographer Han Lans at the time of the cooperation between Monta and Wasi. Neither Wasi nor Lans has consented to the use of this logo.

Wasi thinks that this is an infringement of his image right. Wasi claims that he is recognizable by his characteristic body posture and the action that is typical of him. He thinks he has a reasonable interest in opposing this logo, because normally – as a famous street soccer player – he can earn much money with his image.

Image Right

The Court disagreed with Wasi, and held that Wasi is not recognizable. "The shape of the silhouette as a whole and the body posture of the figure on the logo are not so specific for Wasi that he would be recognizable from these features alone, let alone that the silhouette can clearly only be Wasi's and not anybody else's."

The Court also considered that this could have been different if it had been a photograph that was known to the public. The underlying idea was probably that if a photograph is known, the person portrayed in the photograph will be recognized sooner.

Market Investigations

A remarkable fact in this case is that both parties have submitted market investigations to the court with rather different results. In Monta's market investigation, only 3 out of the 531 youngsters interviewed recognize Wasi in the logo (less than 1%). In Wasi's market investigation no less than 66% to 78% of 150 youngsters recognize him. This is why the Court decided not to attach decisive importance to either of the market investigations.

Copyright

As mentioned above, the photographer Han Lans had not given permission for the incorporation of his photograph into Monta's logo either. His case was heard simultaneously with Wasi's, and had a different outcome. Lans objected to the logo on grounds of his copyright and his moral rights.

The Court established that the silhouette used for the logo was an adaptation of a photograph taken by Lans. In the Court's opinion, it is therefore a reproduction which would have required Lans' permission.

Because Monta and Lans had cooperated in the past, the Court considered it likely that, if Monta had requested it at the time, Lans would have given his permission for the use of the photograph, provided that he would receive a consideration for this use. In this respect the Court considered the following: "This means that it can provisionally be assumed that the use would be relieved of its infringing, unlawful nature if Lans et al. would be paid an appropriate consideration."

Consequently, the Court denied the prohibition that Lans claimed, but did award an advance to damages in the amount of € 10,000.

Moral rights

The Court held that Lans' moral rights have not been affected. Lans did not explain sufficiently why the logo would be an impairment of his work. Lans also claimed that his name should be mentioned with the logo. The Court denied this claim, because Lans did not claim to be identified with the original photograph either, and because practically speaking it would not be feasible to mention his name with this logo.

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