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Doubles and advertisement (Michel Polnareff)

By Julie Molis - Expertise Blog

Michel Polnareff wishes he could shut the music down. He claimed for a penalty of € 1.1 million to CETELEM pretending that various commercials broadcasted on television since 2011 harmed its image, which caused him economic and moral damages. In addition to the compensation for loss of earnings, Michel Polnareff claimed for compensation due to the ridiculous personality of the character played by his double. 

The debate on the existence and exploitation of double for advertisement is not new.

French law provides a quite large protection to personalities whose attributes (image or voice) are used for advertising purposes.

Article 9 of the French civil code provides for the right to an image being considered as one of the personality attributes. On the ground of this text, an individual whose double has been used under prejudicial circumstances could claim for compensation for its moral prejudice.

In addition, on the ground of Article 1382 of the French civil code, an individual could also claim for compensation for economic damages due to the exploitation of its image and/or its voice without a financial compensation, subject that there is a certain loss of earnings.

In order to make the judge acknowledge such claims, there has to be a likelihood of confusion with the individual, i.e. the individual is identifiable with the image and/or the voice.

Any use of a double would harm the right to an image and/to a voice of the individual, the latter being well-founded to claim for compensation for the damage suffered on the ground or Article 9 and/or Article 1382 of the French civil Code.

Nevertheless, there are various exceptions for which the use of a double is, a priori, lawful:

 -          When justified by the historical or news context in which the creation is placed,

-          When it is not defamatory,

-          When it is a parody or a caricature.

Even though, once the double is used for advertising purpose, the classical exceptions related to news or parody are not justified anymore.

It is why judges have condemned the use of a commercial based on a text read by an individual whose diction, flow, tone and inflections of voice (...) evoked verbal peculiarities of the actor Claude Piéplu” (First instance court of Paris, 3 December 1975).

Likewise, in a case opposing Belmondo, Hallyday and Vartan to Eminence, the judges have considered that “such kind of imitation is not a pastiche tolerated by the uses, as not being an end in itself, but a mean used for advertising and commercial purposes in order to attract the public attention not on the artist but on a product, and without having obtained the special authorization from the interested individual” (First instance court of Paris, 24 February 1976).

Gérard Depardieu has also obtained compensation for damages to his image because of the use of his double in a commercial (First instance court of Paris, 17 October 1984).

And more recently, Jean-Luc Delarue had successfully complained for a video featuring a look-alike of him being drunk on a plane, ending with a promotional message "If that were true, it would be in Choc”. He obtained a compensation on the basis of his “exclusive and absolute right to his image, attribute of his personality which allows him to oppose its use” (First instance court of Nanterre, Interim order, 23 March 2007).

This new case will be a great opportunity to review how the court will apply such principles in 2015 and, especially how much they will assess the damage suffered by Michel Polnareff.

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