Cobain alive in Bavaria commercial, publicity rights in the Netherlands

Cobain alive in Bavaria commercial, publicity rights in the Netherlands

Being in love with Nirvana since 1991 I watched the documentary "Montage of Heck" (Brett Morgan 2015) on the life of Kurt Cobain immediately when it was screened in Amsterdam. 

The documentary starts with Cobain as a baby and ends wit his suicide in 1994. In between it paints an impressive intimate picture of Cobain this accompanied with Nirvana's music makes for an intense gripping watch. Rotten tomatoes credit the documentary with an eight out of ten rating . Some home videos of Cobain and Courtney Love are woven into the documentary. Cobain and Love being young parents with their newborn child, Cobain and Love quarreling etc. It kind of struck me to have such an intimate peek into Cobains family life. Not much is said about the impact of Cobains suicide on the people left behind. But watching Cobains mother, Love & Novoselic it obviously has been huge.

Last year a Bavaria commercial aired on Dutch television with Cobain drinking beer on an island together with other popstart that have died (Lennon, Elvis, etc.). At that moment I just found it bad taste and did not think much about it. Now watching "Montage of heck" I just realised how bad taste it actually was. Please judge for yourself.

The question is whether Cobains family could have banned the commercial. In the Netherlands portrait rights (in the US also known as "publicity" and/or "personality" rights) are dealt with in the Dutch Copyright Act, article 21.

Article 21
If a portrait is made without having been commissioned by or on behalf of the persons portrayed, the copyright owner shall not be allowed to communicate it to the public, in so far as the person portrayed or, after his death, his relatives have a reasonable interest in opposing its communication to the public. 

Please note that in Dutch case law (Katja Schuurman vs. Yellow Bear) it has been decided that the person portrayed (and his relatives) may also act against "look a likes". 

There is in my opinion no doubt that the relatives of Cobain would have had a reasonable interest in opposing to the use of Cobains portrait in the Bavaria commercial. 

According to Dutch law a reason to oppose can be that the person portrayed could have asked compensation for the use of its portrait (which Cobain certainly have could given his popularity). Another valid reason for opposing would -according to Dutch law- be that the person portrayed has been made a fool of. Each of the aforementioned reasons alone would already be enough to have the commercial banned. 

Article 21 of the Dutch Copyright Act may be invoked by anyone (so not only by Dutch people). However, a Dutch Court will need to have jurisdiction, which it would have had in  case of the Bavaria commercial as this commercial was aired in the Netherlands.