Belgium national football team denied protection of image rights
From June 12 to July 13 2014, all football-loving eyes will be directed towards the World Cup in Brazil. This will definitely be the case in Belgium, as its national team, the Red Devils, last qualified for the World Cup in 2002. Support for the Red Devils in Belgium is immense and grew significantly during the qualification rounds. More than 20,000 supporters attended the first Red Devils Fan Day on June 2 2013 and the Royal Belgian Football Association (RBFA) – the Belgian governing body for football – received so many offers to sponsor the team that it had to turn some of them down.
The tremendous (commercial) success of the Red Devils has not gone unnoticed. The qualification rounds received heavy press coverage and this is expected to increase once the World Cup starts. Some organisations may try to cash in on the team's success.
A recent case came before the Belgian courts in which the RBFA claimed that a book cover photograph infringed the Red Devils' image rights. The dispute arose from the first publication of the book "Football Annual 2012-2013" by a Belgian publisher with the cover below.
About 80% of the cover comprised a picture of six of the Red Devils (including Vincent Kompany, Kevin De Bruyne and Kevin Mirallas) celebrating after their team scored a goal during a World Cup qualification match. The back cover included text describing the book as a summary of the previous football season, covering both the Belgian and international league, as well as the national team. The book also contained interviews with some of the Red Devils depicted in the cover photograph.
In Belgium, the RBFA is competent to enforce the individual and collective personality rights of the players in their capacity as members of the Red Devils. The RBFA had already signed an agreement with another publisher, which had published The Official Red Devils Book and was authorised to use a similar cover photograph. The RBFA thus claimed that the unauthorised publisher's publication of Football Annual 2012-13 jeopardised its relationship with the authorised publisher (as well as with any future partners). When the unauthorised publisher failed to reply to the RBFA's formal written notice, the RBFA initiated expedited proceedings for infringement of the players' image rights and requested a court order to have all copies of the annual withdrawn from sale and its cover replaced.
Right to privacy
The question of whether the unauthorised publisher could use the contested photograph on the cover of the football annual was answered in the affirmative by both the president of the Brussels Court of First Instance1 and the Brussels Court of Appeal2.
Image rights are personality rights that an individual has over his or her own image and which protect individuals from taking and publishing photographs without their consent. However, these rights are restricted by the right to freedom of expression and the freedom of the press, as laid down in Article 10 of the European Convention on Human Rights, Article 19 of the International Covenant on Civil and Political Rights and Articles 19 and 25 of the Belgian Constitution. This restriction unequivocally applies to public figures, who are:
"persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain3."
The use of images of public figures without their prior consent is subject to two conditions:
• The image is used for information purposes only.
• The public figure's right to privacy is not infringed.
The courts in both instances confirmed that these principles applied to this case. The courts held that the players' right to privacy had not been infringed, because the photo had been taken during an official game of the Red Devils – that is, during a public sporting event, through which the players in question had become well-known public figures. However, the discussion focused on whether the first condition had been breached.
The RBFA claimed that the photo had not been used solely for information purposes, but was rather a blatant attempt to free-ride on the success of the Red Devils, in particular because it was the largest feature on the cover and thus served as an eye-catcher for potential buyers. This constituted a commercial purpose and the publisher therefore should have obtained prior consent from the RBFA.
Both courts disagreed with this claim, agreeing with the annual's publisher that the photo could be freely used, as it had been used purely for information purposes. In the courts' view, the annual clearly aimed to inform readers about the Belgian league and international teams in the 2012/2013 season. The qualification of the Red Devils for the World Cup finals was an inevitable and important part of the past season, as confirmed by the heavy press coverage. The fact that the annual was not written by a journalist, was not presented in a newspaper or magazine and was more expensive than a newspaper or magazine did not alter this conclusion. The court of appeal believed that the photo had a direct relationship with the content of the book, and that it had its own value as information, regardless of the fact that the publisher had profited from publication of the annual. The RBFA's claim based on the personality rights of the players was therefore dismissed as unfounded.
The RBFA's attempt to protect its players' interests and IP rights4 thus failed. With the World Cup finals approaching, it is likely that other companies will also try to use images of or references to the Red Devils. The Belgian press recently reported on the publication of a comic book telling the history of the Red Devils in World Cup competitions since 1930, as well as the launch of a champagne named 'Les Diables Rouges' ('Red Devils' in French) by a French wine house. It remains to be seen whether the RBFA will be able to stop these companies (in or outside the court).
1. President of the Brussels Court of First Instance (expedited proceedings), September 26 2013, 13/1268/C, available at www.ie-forum.be.
2. Brussels Court of Appeal (expedited proceedings), November 12 2013, 2013/KR/234, available at www.ie-forum.be.
3. Resolution 1165, Right to privacy, Parliamentary Assembly, European Council, June 26 1998, nr 7.
4. For example, RED DEVILS is registered as a Benelux and international trademark.