As the legendary Nike slogan said: "Image Is Everything". Successful sportspersons are right up there with the famous actors, pop stars and other showbiz celebrities, as the commercial icons of our time. Even more so in this day and age of outer appearances and multimedia, the image of a sportsperson has become more than just the depiction of a sporting person - it has become a marketable asset often representing great value.
In June 2009, Real Madrid took over striker Cristiano Ronaldo from Manchester United for the astronomical amount of [euro]94 million, making for the most expensive transfer in football history. Although the payment of such a high transfer amount was frowned upon by many sceptics, Real Madrid allegedly recovered its costs within a year's time due to the enormous marketing income that Cristiano Ronaldo generated for the football club. It goes to show that Real Madrid didn't pay almost [euro]100 million just for Ronaldo's football playing qualities, but also for the value of Ronaldo as a commercial product, a marketing commodity. Cristano Ronaldo is the new Beckham.
Well-known sportspersons, especially footballers, are the idols admired by their fans - the consumers - and therefore commercial organisations are eager to bind a sports personality with a positive reputation as the 'face' of their product or service, or to otherwise link their trade name or trademark to that sportsperson in order to boost sales by profiting from the positive image of the player reflecting on the company's product. Clearly, there is a significant commercial value in the exploitable popularity of sportspersons with a reputation. In this respect, exclusivity is of the essence. The popular player therefore has every reason to prevent third parties, without consent, from using and profiting of such player's reputation. This is where Sports Image Rights come into play.
2. Image Rights in the Netherlands
2.1. Defining image rights
The term 'image' may have different meanings. It may refer to a particular depiction (portrait) of a person - a photo, picture, painting, caricature - or to one's physical appearance generally. Image may also have the broader meaning of: how a person is perceived by the public, i.e. a person's reputation. In the latter sense, one's image (reputation) will not merely be connected to a person's physical appearance, but the public will also associate such image to other elements of one's persona, such as name, nickname, voice, autograph and/or other symbols particular to such person (for instance, the shirt number of a famous football player).
It goes without saying that sports personalities have an interest in controlling the commercialisation of their image in the broadest sense - image meaning the reputational goodwill value represented in one's persona (depiction, name and other personal elements). Such control lies in the legal protection enjoyed by (sports)persons against the (commercial) use of one's image by a third party without consent or valid reason. This is what is often referred to as 'image rights'.
2.2. Legal protection
Dutch law does not recognise an image right as such - neither in the broader sense of one's right to (the exploitation of) his or her persona (reputation generally), nor in the sense of a right to one's own image (in the meaning of depiction) similar to the "Recht am eigenen Bild" as recognised in Germany.
Nevertheless, in the Netherlands a famous (or less famous) sportsperson does have several grounds for legal action available to him or her to prevent third parties from (mis)using or profiting from such sportsperson's image without his or her consent. This legal arsenal - what's in a football club's name - can be found in the Copyright Act, the Civil Code and the Benelux Convention on Intellectual Property.
The Copyright Act contains certain provisions that may protect sportspersons against the unauthorised (commercial) exploitation of their portrait. …